1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.


J.L. FOTI CONSTRUCTION COMPANY, INC.


TEXACO, INC.


KENNETH P. THOMPSON CO., INC.


HENRY C. BECK COMPANY


HEATH & STICH, INC.


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.


TRI-CITY CONSTRUCTION CO.


THE DURIRON COMPANY, INC.


SAMSON PAPER BAG CO., INC.


MEL JARVIS CONSTRUCTION COMPANY, Inc.


MIDWEST STEEL ERECTION, INC.


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

OSHRC Docket No. 76-3010

Occupational Safety and Health Review Commission

May 30, 1980

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

F. Barry Maher, New England Telephone & Telegraph Co., for the employer

John P. Carr, Jr., International Rep., IBHEW, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Robert P. Weil is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Weil ruled that New England Telephone and Telegraph Company ("the Company") violated the Act by failing to comply with the ten-foot clearance requirement of the general industry safety standard at 29 C.F.R. 1910.180(j). n1 The Company had originally been charged with failing to comply with the telecommunications standard at 29 C.F.R. 1910.268(j)(4)(i) n2 by operating the boom of a truck-mounted crane within two feet of an energized power line. That charge, however, was subsequently amended to allege noncompliance with the aforementioned section 1910.180(j). We reverse the judge's action in finding noncompliance with section 1910.180(j). [*2] We find that the originally cited standard at section 1910.268(j)(4)(i) is applicable, and that the Company violated the Act by failing to comply with the latter standard.

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n1 Although Judge Weil found a violation of the Act for failure to comply with section 1910.180(j), the more precise designation of the standard involved is section 1910.180(j)(1)(i). The latter standard reads:

1910.180 Crawler Locomotive and Truck Cranes.

* * *

(j) Operating near electric power lines -- (1) Clearances. Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:

(i) For lines rates 50 kv. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.

n2 The standard at 1910.268(j)(4)(i) reads:

1910.268 Telecommunications.

* * *

(j) Vehicle-mounted material handling devices and other mechanical equipment.

* * *

(4) Derrick trucks and similar equipment. (i) This equipment shall not be operated with any conductive part of the equipment closer to exposed energized power lines than the clearances set forth in Table R-2 of this section. (Table R-2 specifies that the approach distance to lines in the over 2 kV but not over 15 kV voltage range is 24 inches.)

[*3]

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I

The Company is a public utility doing business in Maine, New Hampshire, Vermont, Massachusetts, and Rhode Island. It employs some 40,000 persons at about 1300 different facilities throughout its operating area.

On June 21, 1976, four of the Company's linemen (Sullivan, McMahon, Bagley and Regan), under the supervision of foreman Sutherland, were installing an underground telephone cable conduit system at the Hewlett-Packard Company in Andover, Massachusetts. After they completed the installation of the available cable, the linemen were instructed by Sutherland to proceed to the Company's garage and storage yard which was located on land that the Company leased in Lawrence, Massachusetts, in order to pick up two more reels of cable for the Hewlett-Packard job. Sutherland met the linemen in the storage yard and instructed Regan to obtain the cable from among those reels that were stored along the fence on the south side of the yard. n3

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n3 The storage yard was rectangular in shape and was about 150 feet long on its north and south sides and about 100 feet long on its east and west sides. The yard was surrounded by a chain link fence and had two vehicle gates on its north side. Around three sides of the yard there were storage slots for reels of cable and on one of those sides, the south side, there were three trailers used for transporting reels.

[*4]

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Regan and McMahon loaded one reel of cable into a bucket truck and attempted to load the second reel into the truck. They were unable to do so, however, because one of the truck's arbor bars was broken and could not accommodate the second reel. As foreman Sutherland watched, Regan and McMahon tried to load the second reel onto the bucket truck by using an iron bar as an improvised arbor, but found that the bar could not bear the weight of the cable. Sutherland then told them to load the second reel onto a trailer for transport to the Hewlett-Packard site. Sutherland did not tell them how to load the cable onto the trailer and did not tell them which trailer to use. Sutherland did know, however, that of the three trailers on the site, only the tilt trailer could be used; a second trailer had been out of service for weeks and the third trailer was not large enough to hold the cable. Sutherland subsequently went back to his pickup truck about fifty feet away from the employees.

Since loading cable with the assistance of a truck-mounted boom was both accepted practice and the easiest way of proceeding [*5] in this instance, the employees decided to use a digger truck for the job. McMahon, while operating the crane boom controls on the digger truck, positioned the head of the boom over the reel of cable so that the boom made a 15-degree angle with the horizon. From the head of the boom, McMahon ran out a winch wire with a hook on the end. Sullivan placed the hook through the core of the cable reel, drew the hook around the top of the reel and attached it to the winch wire hanging from the boom.

McMahon then used the boom to move the reel into position over the trailer. In the course of doing so, he realized that the head of the boom was close to an overhanging power line that he had never noticed before. n4 The power line was strung between poles that did not themselves rest in the Company's storage yard, but the power line did cross the yard from a point about four feet from the yard's southwesterly corner to a point about twelve feet from the yard's southeasterly corner. The line was about 25 feet off the ground and carried 13.2 kilovolts (kV). It had been erected by the Massachusetts Electric Company and was energized on April 29, 1976.

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n4 One of the Company's management officials, Steffan, became aware of the power line during the winter preceding the date of the accident. Moreover, an employee named Casey testified that he first told foreman Sutherland about the line's existence in May of 1976. Casey testified that he showed Sutherland the power line and that the two of them discussed moving the cable reels resting underneath the line to the middle of the yard in order to avoid loading the reels below the power line. Sutherland, however, testified that he could not remember any such conversation and that he did not know of the overhang until the accident occurred. On the date of the accident, the middle of the yard did contain stored cable reels, but those reels were in addition to the other reels underneath the power lines. Sutherland had not ordered any corrective action taken after allegedly being told about the existence of the power line.

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McMahon discussed the possible hazard presented by the power line with Regan and Sullivan. All three were long-service, experienced linemen, [*7] and they determined that they should continue with the process of loading the second reel because they could do so safely. They also decided, however, that they would thereafter complain to management about the location of the power line. Regan and Sullivan were steadying the reel by holding on to its opposite sides. They were wearing ordinary work gloves. When the reel was about a foot above the trailer, the head of the boom hit the power line. McMahon was hurled from the boom controls and Regan was killed. Sullivan was severely injured.

The Secretary investigated the accident on the day after it took place and subsequently issued a "serious" citation alleging that the Company had violated the Act by failing to comply with the telecommunications standard at section 1910.268(j)(4)(i), note 2 supra. The citation read:

29 CFR 1910.268(j)(4)(i): Derrick trucks and similar equipment. This equipment was operated with conductive parts of the equipment closer to exposed energized power lines than the clearances set forth in Table R-2 of this section

(a) Jobsite, 646 Andover Street, Lawrence, Mass.

(1) Corner mount telecommunication line truck. Mass. #B48-782 I.D. # 72-120637 [*8] N.E.T.

The Company contested the citation and a four-day hearing ensued at which the Company defended primarily by attempting to show that it had trained the employees who were involved in the accident to observe a minimum three-foot clearance distance between the conductive parts of equipment and 13.2 kV power lines and that the act of hitting the power line was an isolated occurrence for which the Company could not be held responsible.

Nearly seven months after the four-day hearing on the merits of the section 1910.268(j)(4)(i) allegation, Judge Weil, by his Interim Order of June 15, 1977, reopened the record and asked the parties to litigate the applicability of the cited standard. He found that the issue of whether the accident site was either a telecommunications center or a telecommunications field installation under section 1910.268(a)(1) n5 had not been litigated. He stated that if section 1910.268 was found to be not applicable, he would entertain a motion to amend to a different standard and suggested the possible applicability of section 1910.180(j)(1)(i), note 1 supra, or section 1926.550(a)(15). n6

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n5 Section 1910.268(a)(1) provides:

1910.268 Telecommunications.

(a) Application. (1) This section sets forth safety and health standards that apply to the work conditions, practices, means, methods, operations, installations and processes performed at telecommunications centers and at telecommunications field installations, which are located outdoors or in building spaces used for such field installations. "Center" work includes the installation, operation, maintenance, rearrangement, and removal of communications equipment and other associated equipment in telecommunications switching centers. "Field" work includes the installation, operation, maintenance, rearrangement, and removal of conductors and other equipment used for signal or communication service, and of their supporting or containing structures, overhead or underground, on public or private rights of way, including buildings or other structures.

n6 Section 1926.550(a)(15)(i) applies to construction work and provides:

1926.550 Cranes and derricks.

(a) General requirements.

* * *

(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not, a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following: (i) For lines rated 50kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet. . . .

[*10]

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After an additional hearing session at which no evidence was presented, the judge in his Interim Order No. 2 of July 27, 1977, found that there was no proof the accident site was either a telecommunications center or a telecommunications field installation. The judge granted a motion by the Secretary to amend to section 1910.180(j), but denied the Secretary's motion to retain his original section 1910.268(j)(4)(i) allegation in the pleadings. The judge also denied a subsequent motion by the Secretary to alternatively plead that section 5(a)(1) of the Act had been violated. The amended section 1910.180(j) allegation, as set forth in Interim Order No. 2, reads:

On June 21, 1976, respondent at its worksite at 646 Andover Street, Lawrence, Massachusetts, violated 29 CFR 1910.180(j) in that respondent failed to assure that it truck bearing I.D. # 72-120637 N.E.T. was operated in such a manner that no conductive part of the crane boom of said truck came within ten feet of exposed, energized power lines.

In his Interim Order No. 3 of August 16, 1977, the judge denied the Company's motion for reconsideration [*11] of Interim Order No. 2 and for interlocutory appeal and denied the Secretary's motion for reconsideration of the Secretary's motion to alternatively plead section 5(a)(1).

II

On November 16, 1978, the judge issued his decision affirming the amended 1910.180(j) citation and assessing a $700 penalty. On March 13, 1979, the judge issued his findings of fact and conclusions of law, adopting them as part of his decision of the previous year. The judge held that the telecommunications standard does not purport to cover all operations of a telecommunications company but instead is limited to working conditions at "telecommunications centers" and at "telecommunications field installations." Since he found that the worksite in this case was neither, the judge decided that the general industry standard at section 1910.180(j) governed the situation and not the telecommunications standard at section 1910.268(j)(4)(i).

In making his determination that the worksite was neither a telecommunications center nor a telecommunications field installation, the judge considered the testimony of company witness Steffan who described the worksite as a "garage and storage facility." The judge also noted [*12] that there were no telecommunication installations of any kind in the storage yard and that the adjacent garage of the Company was served only by telephone equipment available to telephone subscribers generally, such as trunklines and extensions. Furthermore, the judge found, the telephone equipment in the yard was connected to telephone cables only to the extent necessary to handle messages directed to and from the garages, just as the equipment of a company subscriber would be. The judge rejected a contention of the Company that the section 1910.268(s)(39) n7 definition of "telecommunications line truck" suggested the applicability of section 1910.268. He stated that "the type of facility upon which the work is performed, not the type of tool used to perform the work, . . . is decisive as to applicability."

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n7 Section 1910.268(s)(39) provides:

1910.268 Telecommunications.

* * *

(s) Definitions --

* * *

(39) Telecommunication line truck. A truck used to transport men, tools, and material, and to serve as a traveling workshop for telecommunication installation and maintenance work. It is sometimes equipped with a boom and auxiliary equipment for setting poles, digging holes, and elevating material or men.

[*13]

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In considering the merits of the section 1910.180(j)(1)(i) allegation, the judge found that the Company had knowledge of the power line at least two months before the accident. In making this finding, the judge specifically credited the aforementioned testimony of employee Casey over foreman Sutherland to the effect that Casey had told Sutherland about the line in May of 1976. See note 4 supra. The judge next determined that, in possession of such knowledge, the Company had a duty not just to train its employees on how best to protect themselves from the power line, but to abate the hazardous condition because the condition existed in the Company's own yard "where he [the Company] has control."

The judge found that, in the absence of the Company's acquiescence as tenant in possession, the Massachusetts Electric Company could not have strung the power line over the Company's yard without an order of the Massachusetts Department of Public Utilities. If the Company had required Massachusetts Electric to go before the state public utilities department, the Company might have been able to compel Massachusetts [*14] Electric to put the power line underground or on 50-foot poles, either measure being sufficient to eliminate the hazard. Even with the power line in its present position, however, the judge found that the protection of the Company's employees was still within the Company's control. He found that all the Company had to do to eliminate the hazard was to move the vehicle stops against which the trailers were backed from a point about 6 feet from the fence to a point about 25 feet from the fence. Instead, the judge stated, "for its own convenience" the Company had "left the reels and trailers where they exposed employees to the danger of death."

The judge's decision also adopts certain findings of fact submitted by the parties. The judge's findings include the following: 1) construction manager Steffan, who was responsible for all work activities at the cited worksite and was in the reel storage yard on a daily basis, became aware of the power line while it was being constructed in the winter of 1975-76; 2) although Steffan called the Company's engineering department about the power line, Steffan did nothing further about the line; 3) while employee McMahon was articulating the boom [*15] of the digger truck to load the reel of cable onto the trailer, the boom of the truck came into contact with the overhead energized power line; 4) although it was the Company's policy to send all linemen to lineman school, employee McMahon had not been sent to lineman school; 5) prior to the accident, McMahon believed that the Company required a "no-touch" policy when working close to power lines and had worked within three feet of energized lines on many occasions; 6) maneuvering conductive parts of the Company's equipment within 24 inches of the power line was a violation of some of the Company's work rules; 7) the Company employees who participated in moving the cable reels were all experienced linemen with good safety records who worked close to power lines on almost a daily basis and who had all received training in working close to power lines; 8) just before the accident occurred, the relevant employees observed the power line, stopped the work operation briefly and then determined that the work operation could continue safely.

III

The Company petitioned for review of the judge's decision and review was directed by Commissioner Barnako on the issues raised by the Company's [*16] petition. The parties were specifically requested to brief the significance, if any, of Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978). n8 Both parties submitted briefs and orally argued the case before the Commission.

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n8 In Diebold, the Sixth Circuit upheld the Commission's ruling that the general machine guarding standard at 29 C.F.R. 1910.212(a)(3)(ii) required point of operation guarding for the employer's press brakes, even though the standard more specifically applicable to press brakes at 29 C.F.R. 1910.217 arguably exempted the press brakes from such guarding requirements. The court stated, however, that the employer did not have reasonable notice 1910.212(a)(3)(ii) applied to press brakes and that penalizing the employer for noncompliance with the standard under such circumstances would violate due process.

In this case, the Company argued before the judge that, in view of the applicability of specific standards directed to telecommunications work, it could not have known that a general industry standard might apply to the facts of this case. Because this argument is similar to that made by the employer in Diebold, the parties were asked to brief the significance of Diebold.

[*17]

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The Company argues on review that the judge erred by sua sponte raising the issue of the telecommunications standard's applicability some seven months after the hearing on the merits of the case, citing Central Steel and Tank Co., 75 OSAHRC 9/A2, 3 BNA OSHC 1711, 1975-76 CCH OSHD P20,172 (No. 2346, 1975), and Consolidated Pine, Inc., 75 OSAHRC 55/E14, 3 BNA OSHC 1178, 1974-75 CCH OSHD P19,597 (No. 5543, 1975). The Company also claims that Judge Weil prejudged the applicability issue by ruling, in his Interim Order No. 2, that the telecommunications standard was inapplicable before the Company had ever been given the opportunity to present evidence on the issue. The Company also points out that, although the judge states in his decision that neither party offered any evidence at the July 1, 1977, hearing in the case, the Company had wanted to present evidence at that hearing through a witness named Shumaker who had been involved in promulgating the telecommunications standards but who had recently left the country for a permanent assignment in Iran. Thus, the Company argues, the judge's [*18] belated action in raising the amendment issue precluded its use of Shumaker as a witness, and, further, "tainted irrevocably" the "entire proceeding."

The Company also argues that the general industry standard at section 1910.180(j)(1)(i) is not applicable to the operation of its telecommunications derrick (the crane on its digger truck) because the telecommunications standard at section 1910.268(j)(4)(i) is the more specific standard and therefore applicable. The Company contends that the employees involved in the accident were telecommunications linemen who were installing telecommunications facilities at Hewlett-Packard and that the special clearance rules contained in Table R-2, as referred to in section 1910.268(j)(4)(i), were specifically promulgated for telecommunications linemen. The two standards differ, the Company argues, because telecommunications workers were determined by the Secretary to require only the shorter, two-foot clearance distance when working with 13.2 kV lines, citing the preamble to the telecommunications standards published at 40 Fed. Reg. 13,436 (1975). n9 The Company contends that the reason for the existence of section 1910.268(j)(4)(i) relates to [*19] the general nature of the work operation (telecommunications) and the specific job classification of the involved employees (telecommunications linemen), rather than to any differences in the locations at which work is being performed. n10 The Company asserts that, when the accident occurred, employee McMahon was operating equipment which the Secretary specifically defines in telecommunications standards 1910.268(s)(38) n11 and 1910.268(s)(39), note 7 supra, as a telecommunications derrick mounted on a telecommunications line truck. This, the Company contends, is a further indication that the telecommunications standard applies here.

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n9 The pertinent portion of 40 Fed. Reg. 13,436 (1975) reads:

Telecommunications workers, electric utility workers and line-clearance tree trimmers, because of their training and experience, are familiar with the hazards and techniques associated with working on or near energized lines, and it is often necessary for these types of employees to work closer than ten feet to the lines. Therefore the final rule provides an exception from the ten foot clearance requirement in 1910.67 for telecommunications, electric utility, and line-clearance tree trimming operations . . . to clearly reflect the intent of the proposal. And . . . separate clearance distances have been established for these employees in Tables R-2 (telecommunications workers) and R-3 (line clearance tree trimmers) of the new 1910.268. Clearance distances for electric utility workers are found in Tables V-1 and V-2 of Subpart V of Part 1926. These special requirements take into account the training and experience of the employees and the nature of the work being performed.

n10 The Company also argues that the judge's decision poses a serious safety issue because it stands for the proposition that its linemen must memorize and obey two sets of rules to protect themselves against identical conditions, depending upon where the conditions are encountered.

n11 Section 1910.268(s)(38) reads:

1910.268 Telecommunications.

* * *

(s) Definitions --

* * *

(38) Telecommunications derricks. Rotating or nonrotating derrick structures permanently mounted on vehicles for the purpose of lifting, lowering, or positioning hardware and materials used in telecommunications work.

[*20]

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The Company contends that an examination of the entire body of telecommunications standards shows a clear intent that the telecommunications standard should apply in this case. Such an examination, the Company argues, demonstrates that in promulgating the telecommunications standards, the Secretary did not intend to regulate certain physical locations where telecommunications work is performed, like telecommunications switching centers, telephone poles and underground cable conduits. On the contrary, the Company asserts, the Secretary intended to regulate the installation, maintenance, and repair of telecommunications equipment generally and the functions and conditions associated with such work. The Company argues that the following telecommunications standards are illustrative of this wider scope: 1) section 1910.268(b)(4) n12 was intended to regulate the storage of liquid propane gas in the Company's garage, 2) section 1910.268(i)(2)(iv) n13 was intended to regulate employees lying on their backs under motor vehicles trying to repair them while at facilities like the worksite here, 3) section 1910.268(g)(3)(iv)(D) [*21] n14 attempts to prevent linemen who have used pole climbers at a pole line installation from wearing the pole climbers while driving their vehicles back from a pole line installation, and 4) section 1910.268(k) n15 specifically regulates the hauling of cable reels.

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n12 The standard at 1910.268(b)(4) reads:

1910.268 Telecommunications.

* * *

(b) General --

* * *

(4) Hazardous materials. Highway mobile vehicles and trailers stored in garages in accordance with 1910.110 may be equipped to carry more than one LP-gas container, but the total capacity of LP-gas containers per work vehicle stored in garages shall not exceed 100 pounds of LP-gas. All container valves shall be closed when not in use.

n13 The standard at 1910.268(i)(2)(iv) reads:

1910.268 Telecommunications.

* * *

(i) Other tools and personal protective equipment --

* * *

(2) Eye protection. Eye protection meeting the requirements of 1910.133(a)(2) thru (a)(6) shall be provided and the employer shall ensure its use by employees where foreign objects may enter the eyes due to work operations such as but not limited to:

* * *

(iv) Working under motor vehicles requiring hammering. . . .

n14 The standard at 1910.268(g)(3)(iv)(D) reads, in pertinent part:

1910.268 Telecommunications.

* * *

(g) Personal climbing equipment --

* * *

(3) Pole climbers.

* * *

(iv) Pole climbers may not be worn when:

* * *

(D) Driving a vehicle. . . .

n15 The standard at 1910.268(k) reads, in pertinent part:

1910.268 Telecommunications.

* * *

(k) Materials handling and storage -- (1) Poles. When working with poles in piles or stacks, work shall be performed from the ends of the poles as much as possible, and precaution shall be taken for the safety of employees at the other end of the pole. During pole hauling operations, all loads shall be secured to prevent displacement. Lights, reflectors and/or flags shall be displayed on the end and sides of the load as necessary. The requirements for installation, removal, or other handling of poles in pole lines are prescribed in paragraph (n) of this section which pertains to overhead lines. In the case of hoisting machinery equipped with a positive stop loadholding device, it shall be permissible for the operator to leave his position at the controls (while a load is suspended) for the sole purpose of assisting in positioning the load prior to landing it. Prior to unloading steel, poles, crossarms, and similar material, the load shall be thoroughly examined to ascertain that the load has not shifted, that binders or stakes have not broken, and that the load is not otherwise hazardous to employees.

(2) Cable reels. Cable reels in storage shall be checked or otherwise restrained when there is a possibility that they might accidentally roll from position.

[*22]

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The Company also contends that the judge erred by adopting a definition of "telecommunications center" from the narrower terms of section 1910.268(a), note 5 supra, rather than from the specific definition for those terms at section 1910.268(s)(37). n16 The Company states that the judge limited the definition of a telecommunications center to a location housing equipment capable of switching general telephone traffic to the outside world.

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n16 The standard at 1910.268(s)(37) reads:

1910.268 Telecommunications.

* * *

(s) Definitions --

* * *

(37) Telecommunications center. An installation of communication equipment under the exclusive control of an organization providing telecommunications service, that is located outdoors or in a vault, chamber, or a building space used primarily for such installations.

Note -- Telecommunication centers are facilities established, equipped and arranged in accordance with engineered plans for the purpose of providing telecommunications service. They may be located on premises owned or leased by the organization providing telecommunication service, or on the premises owned or leased by others. This definition includes switch rooms (whether electromechanical, electronic, or computer controlled), terminal rooms, power rooms, repeater rooms, transmitter and receiver rooms, switchboard operating rooms, cable vaults, and miscellaneous communications equipment rooms. Simulation rooms of telecommunication centers for training or developmental purposes are also included.

[*23]

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The Company further contends that the judge erroneously limited the companion terms, "telecommunications field installation" to locations where there was an installation of telephone poles and cables. The Company states that the judge ignored the fact that most of its lines are underground and that the judge would not permit the Company to show that the subject worksite contained an underground telephone cable installation. The Company argues that a cursory glance at section 1910.268(s)(37), note 16 supra, shows that the definition of a telecommunications center extends well beyond buildings containing equipment capable of switching telephone traffic to the outside world and that this definition specifically encompasses all of the support facilities relating to switching equipment like power rooms, training rooms and outdoor locations as well. Although the Company acknowledges that the Secretary does not define a telecommunications field installation, the Company argues that if the Secretary had done so, he would have been consistent and defined it to include support facilities.

The Company insists, [*24] however, that it is "beyond dispute" that its employees were engaged in "field" work as described in section 1910.268(a)(1), note 5 supra. It points out that Silvio Patti, an employee of the Secretary who represented the Secretary during the promulgation hearings on the telecommunications standards, agreed in his deposition that the Company's employees engaged in "field" work. The Company then argues that if Patti believed the telecommunications standards applied, the Commission cannot find that the Company should somehow have been able to determine that the telecommunications standards did not apply but that the general industry standards applied instead, citing Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979). It argues that even if the general industry crane standard at section 1910.180(j)(1)(i) is applicable here, the standard is constitutionally unenforceable against the Company under these circumstances, citing Diebold, Inc. v. Marshall, supra. Similarly, with respect to its lack of notice claim, the Company argues that the general industry crane standard would not apply here even if the telecommunications standards had not been promulgated. [*25] Prior to the promulgation of the telecommunications standards, the Company argues, the construction standard at section 1926.550(a)(15)(i), note 6 supra, would have been applicable because its telecommunications activities were formerly deemed to constitute construction work, citing United Telephone Co. of the Carolinas, 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD P21,043 (No. 4210, 1976). The Company argues, therefore, that it could not possibly have been expected to determine that when the telecommunications standards were promulgated "certain undefined integral functions of the [Company's] installation activities became for the first time general crane industry activity."

If the Commission accepts the Company's arguments on the question of which standard is applicable, the Commission must still resolve the question of whether the Company violated the Act under these circumstances by failing to comply with section 1910.268(j)(4)(i). n17 The Company, therefore, also submits its arguments on the merits of the alleged violation.

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n17 The Company concedes that it failed to comply with 1910.180(j) if that standard is applicable.

[*26]

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The Company argues that the judge erred in finding that it was the Company's duty "to abate the danger, not instruct its employees how they could mitigate their exposure." The Company asserts that the duty placed on employers by cases dealing with safety standards which prohibit the operation of cranes within specified distances of live power lines extends only to the provision of adequate safety instructions and supervision and does not extend to preventing employees from working near energized power lines or having the power lines placed underground. The cases the Company cites are Ames Crane and Rental Service v. Dunlop, 532 F.2d 123 (8th Cir. 1976), Danco Construction Co. v. OSHRC, 586 F.2d 1243 (8th Cir. 1978) and Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (7th Cir. 1975). In fact, the Company argues, at one point during the November 1976 hearing in the case, Judge Weil himself had agreed that the Company's duty was limited to adequately training and supervising its employees. The Company asserted at oral argument that "it's perfectly permissible to operate a crane, conduct [*27] a part of a crane . . . within a certain specified distance of quote 'an exposed energized power line' . . . and therefore . . . the law is pretty clear that one's duty is to train adequately . . . ." Because, therefore, the standard at section 1910.268(j)(4)(i) contemplates the existence of energized power lines, the Company argues, it is inconsistent with the terms of the standard to suggest a means of abatement that would eliminate the presence of the energized power line rather than simply requiring telecommunications workers to maintain specific distances from such lines, such as in this case a required distance of two feet.

In the event that the Commission finds the Company's safety program to be adequate, but also finds that an adequate safety program is not enough to prove that the Company's actual supervision was adequate, the Company argues that the evidence demonstrates the adequacy of its actual supervision. It points out that the Act does not require one-on-one supervision and that all the linemen involved in this case were very experienced. The Company states that it was not its practice to supervise such experienced linemen during routine operations and that the [*28] law does not require it to do so. The Company also urges that the Commission find as a matter of law that the Company met its training and supervisory duties because the Company was not charged with noncompliance with the safety training provision of the telecommunications standards found in section 1910.268(c). n18

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n18 Section 1910.268(c) reads:

1910.268 Telecommunications.

* * *

(c) Training. Employers shall provide training in the various precautions and safe practices described in this section and shall insure that employees do not engage in the activities to which this section applies until such employees have received proper training in the various precautions and safe practices required by this section. However, where the employer can demonstrate that an employee is already trained in the precautions and safe practices required by this section prior to his employment, training need not be provided to that employee in accordance with this section. Where training is required, it shall consist of on-the-job training or classroom-type training or a combination of both. The training program shall include a list of the subject courses and the types of personnel required to receive such instruction. A written description of the training program and a record of employees who have received such training shall be maintained for the duration of the employee's employment and shall be made available upon request to the Assistant Secretary for Occupational Safety and Health. Such training shall, where appropriate, include the following subjects:

(1) Recognition and avoidance of dangers relating to encounters with harmful substances, and animal, insect, or plant life.

(2) Procedures to be followed in emergency situations, and

(3) First aid training, including instruction in artificial respiration.

[*29]

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The Company argues that if the location of the power line on its property did create an additional duty for the Company, neither the Act nor the standards delineate the extent of the duty. The most that can be required is that the Company take those precautions which a reasonable employer in the industry would take. The Company contends that the Secretary has not shown that a reasonably prudent employer would have done more than train its employees to stay at least three feet away from 13.2 kV power lines. The Company further argues that the judge essentially held it strictly liable for the acts of its employees. However, the Company argues that National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), and Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3d Cir. 1976), support its contention that it should not be required to make it impossible for its employees to violate the standard. The Company rejects the judge's suggestion that it should have prevailed upon the Massachusetts Department of Public Utilities to force the electric company to put the power [*30] line underground or up on 50-foot poles. The Company states that the suggestion is not supported by evidence. The other method suggested for preventing the accident was to move the cable storage area farther away from the fence under the power line. The Company, while stating that it had done so after the accident, argues that admitting evidence on this matter contravenes the well-established "repair doctrine" which prohibits the use of such evidence to prove the violation of a law. The doctrine seeks to encourage corrective measures following accidents, and the Company argues that this purpose will be thwarted if such evidence is used to find that the Company violated the Act in this case.

The Company's final argument is that the Secretary failed to meet his burden of proving the Company knew or should have known its employees would violate company safety rules. The Company argues that the judge erroneously allowed the Secretary to discharge his burden of proving knowledge by showing that the Company knew about the existence of the power line. But the presence of the power line, the Company contends, was not a violation of the Act or of the cited standard. Instead the Secretary [*31] had to prove, but did not, that the Company knew or should have known that its employee would violate the three-foot clearance requirement in the Company's safety rules. In support of its contention that the Secretary failed to prove knowledge, the Company refers to the outstanding safety record of the involved employees, the conference that occurred when the power line was first spotted by them, and the subsequent employee decision to proceed because they thought that the work could be done safely. The Company does concede, however, that it knew of the presence of the power line and that it knew its employees would be performing work in its cable storage area.

IV

The Secretary argues on review that regardless of which OSHA standard applies to the Company's activities in its garage and storage yard, the Company violated section 5(a)(2) of the Act when the boom of its digger truck touched the energized power line. The Secretary contends that there are four standards that could "conceivably" be applied to the facts in this case. In addition to section 1910.268(j)(4)(i), note 2 supra, which the Company contends is applicable, and section 1910.180(j), note 1 supra, which [*32] the judge found applicable, the Secretary argues that the standard at section 1910.181(j)(5), n19 which forbids the operation of derricks within ten feet of unguarded, energized power lines rated 50,000 volts or less and the standard at section 1926.550(a)(15)(i), note 6 supra, which contains the same requirements as section 1910.181(j)(5), but applies to cranes and derricks engaged in construction, also could be applicable. Since the Company has stipulated that the boom here actually touched the power line and since all the above standards forbid operation of a digger truck's boom as close as two feet to an unprotected, energized 13.2 kV line, the Secretary argues that noncompliance with some standard has been established; it is the Commission's duty, the Secretary contends, to amend to the proper standard if it has not been cited.

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n19 The standard at 1910.181(j)(5) reads, in pertinent part:

1910.181 Derricks.

* * *

(j) Other requirements --

* * *

(5) Operating near electric powerlines. (i) Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the derrick have been erected to prevent physical contact with the lines, derricks shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:

(a) For lines rated 50 kv. or below minimum clearance between the lines and any part of the derrick or load shall be 10 feet.

(b) . . . .

(iii) Before the commencement of operations near electrical lines, the owners of the lines . . . shall be notified and provided with all pertinent information. The owner's cooperation shall be requested.

(iv) Any overhead wire shall be considered to be an energized line until the owner of the line . . . state(s) that it is deenergized.

[*33]

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The Secretary contends that the working conditions at the Company's worksite on the accident date were different than they would have been normally because foreman Sutherland had failed to pre-survey the cable loading job for safety. The lack of a pre-survey, the Secretary argues, was significant because the non-supervisory employees in this case had to work under a relatively new energized power line, a power line they had not had the occasion to notice previously. Unlike the four employees, however, foreman Sutherland did know about the energized power line. Sutherland also knew that the employees were going to load a cable reel onto a trailer and that the employees might choose to use a digger boom to do so. Use of the digger boom in the location where Sutherland knew the employees were to work would bring the boom close to the energized line. Therefore, the Secretary argues, the Company through Sutherland could have foreseen the violation committed by its employees. Moreover, the Secretary continues, the Company had been told by employee Casey that the hazard created by the power line could [*34] be obviated by moving the cable reels to the middle of the worksite. With respect to the Company's assertion that the accident was primarily the fault of its non-supervisory employees, the Secretary argues that this assertion should be rejected because the Company's investigation of the accident concluded that the employees used an appropriate procedure to load the cable.

The Secretary contends that in situations in which more direct means of obviating hazards are available, an employer is required to do more than rely on the training and experience of its employees, citing Akron Brick & Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975-75 CCH OSHD P20,302 (No. 4859, 1976); Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1975-76 CCH OSHD P20,589 (No. 1263, 1976); and J.H. MacKay Electric Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD P23,026 (No. 16110, 1978). Even if the Company were allowed to rely on the adequacy of its training program as a defense to the alleged violation, the Secretary argues, the Company's training program was not sufficient to protect its employees, citing Brennan v. Butler Lime and Cement Co., supra. McMahon, who operated [*35] the digger boom, had not received formalized training for that job and had never been told of the Company's safety rule forbidding operation of the boom within three feet of an unprotected power line. The Secretary also argues that if the Company had an adequate safety program, the program would have to have been at least effective enough to prevent the simultaneous violation of its safety rules by three experienced employees.

The Secretary also argues that the judge acted properly in finding that the telecommunications standards at section 1910.268 did not apply to the relevant work activities of the Company's employees. The Secretary points out that section 1910.268(a)(3) reads: "Operations or conditions not specifically covered by this section are subject to all the applicable standards contained in this Part 1910. . . . Operations which involve construction work, as defined in 1910.12 are subject to all the applicable standards contained in Part 1926. . . ." The Secretary observes that the operations to which the telecommunications standards apply are defined in section 1910.268(a)(1) as "work conditions, practices, means, methods, operations, installations and processes [*36] performed at telecommunications centers and at telecommunications field installations. . . ." The Secretary argues that the judge was clearly correct in finding that the worksite was not a telecommunications center as defined in section 1910.268(s)(37), note 16 supra, because the communications equipment at the worksite was no different than that which might be found at the business establishment of one of the Company's customers.

The issue then becomes, argues the Secretary, was the worksite a telecommunications field installation? Although section 1910.268(a)(1), note 5 supra, includes a definition of "field work," the standards do not specifically define a telecommunications field installation. The Secretary suggests that we consider this issue in light of the preamble to the telecommunications standards, which states:

This section contains standards which are addressed to the special hazards and special circumstances which exist in the telecommunications industry. However, this section only encompasses those standards which we believe to be unique to telecommunications, and does not contain all the standards which may apply to telecommunications operations. . [*37] . . (Emphasis added by the Secretary, who refers us to United Telephone Co. of the Carolinas, supra).

40 Fed. Reg. 13,437 (1975).

The Secretary also points us to another part of the preamble, a part upon which the Company also relies. That portion of the preamble discusses the clearances needed by telecommunications workers:

Telecommunications workers . . . because of their training and experience, are familiar with the hazards and techniques associated with working on or near energized lines, and it is often necessary for these types of employees to work closer than ten feet to the lines. Therefore, the final rule provides an exception from the ten foot clearance requirement . . . (emphasis added by the Secretary).

Id. at 13,436. Unlike much of the work performed by the Company's employees, the Secretary argues, work at its storage facility did not require employees to work within ten feet of energized lines. Thus, one of the primary justifications for dispensing with the ten-foot clearance distance at telecommunications field installations is inapplicable to work performed at the storage facility. The Secretary argues that since the clearances set forth [*38] in section 1910.268 are exceptions from what is normally deemed necessary to protect employees from electrocution, they should be applied narrowly, citing Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), cert. den., 434 U.S. 874 (1977), and A. H. Phillips v. Walling, 324 U.S. 490 (1945).

The Secretary further argues that the judge, having properly found the telecommunications standards inapplicable, correctly concluded that section 1910.180(j) was applicable. The Secretary asserts that the loading of cable reels at a garage is not construction and that whether or not the digger truck is properly described as a derrick rather than a crane, the digger truck was being operated as a crane when it struck the power line. If the digger truck is labeled a derrick, argues the Secretary, the Company failed to comply with section 1910.181(j)(5), which states the identical requirements for derricks as section 1910.180(j) does for crawler locomotive and truck cranes.

The Secretary's final argument is that the judge properly affirmed a section 1910.180(j) violation because [*39] the Company was not prejudiced in its defense by the application of that section to the facts in this case, unlike the employer in the case of Diebold, Inc. v. Marshall, supra. The Secretary argues that the Company could not have presented any additional evidence under section 1910.180(j) than it did present in defending against the initial section 1910.268(j)(4)(i) allegation. Regardless of which standard was applicable, the Secretary argues, the mandated clearances were violated when the boom of the digger truck touched the power line. The only significant issue therefore was whether the Company's training program absolved it of legal responsibility for the violations.

V

We agree with the Company that the telecommunications standard at section 1910.268(j)(4)(i) is applicable to the facts of this case. Essentially, the parties differ on whether the applicability of the telecommunications standards should be determined on a geographical or a functional basis. The Secretary views the standards geographically; i.e., the standards apply only at telecommunications centers or telecommunications field installations. The Company views the standards functionally; i.e., [*40] the standards apply where telecommunications workers are performing telecommunications work.

The Section within the telecommunications standards that deals with the applicability of those standards is section 1910.268(a). That section, however, does not dispose of the issue because it refers to both geography and function. Sub-section 1910.268(a)(1), note 5 supra, refers to function when it mentions "work conditions, practices, means, methods, operations, installations and processes performed," but then refers to geography when it states that the above-mentioned functions are performed at telecommunications centers and telecommunications field installations. Furthermore, sub-section 1910.268(a)(3) n20 refers to functions when it provides that operations or conditions not specifically covered by that section are subject to all the applicable standards contained in Part 1910.

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n20 Section 1910.268(a)(3) reads:

1910.268 Telecommunications.

(a) Application.

* * *

(3) Operations or conditions not specifically covered by this section are subject to all the applicable standards contained in this Part 1910. See 1910.5(c). Operations which involve construction work, as defined in 1910.12 are subject to all the applicable standards contained in Part 1926 of this chapter.

[*41]

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Since the section defining the standard's applicability does not provide us with a sufficiently clear indication of whether geography or function should be determinative, we must look elsewhere for assistance. Although both parties have cited the preamble to the telecommunications standards in support of their positions, we are most influenced by the discussion in the preamble set forth below, which supports the Company's position. When the Secretary promulgated section 1910.268, he also amended section 1910.67 to provide a ten-foot clearance requirement for all employees operating aerial lifts near energized power lines of 50 kV or less. In the following discussion from the preamble, the Secretary addresses the interrelationship between section 1910.268 and section 1910.67 and explains why he intended to exclude telecommunications workers from the limitations of the ten-foot requirement of section 1910.67:

The reason for this [ten foot] requirement is to protect employees who lack familiarity with and training in hazards associated with working near electric power lines. . . . Several commenters [*42] interpreted this proposed requirement to apply to all persons operating aerial lifts near power lines. . . . However, this was not the intent of the proposed standard. Telecommunications workers . . . because of their training and experience, are familiar with the hazards and techniques associated with working on or near energized lines, and it is often necessary for these types of employees to work closer than ten feet to the lines. Therefore, the final rule provides an exception from the ten foot clearance requirement . . . for telecommunications operations . . . to clearly reflect the intent of the proposal. . . . [S]eparate clearance distances have been established for these employees in Tables R-2 (telecommunications workers) . . . of the new 1910.268. . . . These special requirements take into account the training and experience of the employees, and the nature of the work being performed.

40 Fed. Reg. at 13,436.

Further, the standard at section 1910.268(c), note 18 supra, which deals with the training of telecommunications employees, requires employers to "provide training in the various precautions and safe practices described in this section and . . . insure [*43] that employees do not engage in the activities to which this section applies until such employees have received proper training. . . ." It is clear, therefore, that the purpose of the above-quoted material from the preamble and training standard is to emphasize that telecommunications workers are expected to be trained to work safely at distances closer to energized power lines than most other workers. Because of this expectation about the skill level of telecommunications employees, we believe that the applicability of the telecommunications standards at section 1910.268 was intended to hinge primarily on function and the nature of the work operation being performed, rather than on the location where the work was being performed. We read the terms "telecommunicatioins centers" and "telecommunications field installations" merely to reflect the fact that these are the types of geographical locations at which telecommunications activities generally take place, rather than to geographically restrict the applicability of section 1910.268. Indeed, other standards within the telecommunications section at 1910.268 clearly indicate that the applicability of these standards need not be confined [*44] to telecommunications centers and telecommunications field installations. These standards have been cited by the Company (as set forth above) and include sections 1910.268(b)(4) [garage storage of LP-gas], note 12 supra; section 1910.268(i)(2)(iv) [eye protection for employees working under motor vehicles], note 13 supra; section 1910.268(g)(3)(iv)(D) [pole climbers are not to be worn while driving], note 14 supra; and section 1910.268(k) [cable reel storage], note 15 supra.

All five employees involved in the fatality were telecommunications workers doing telecommunications work. The employees were loading cable at one of the Company's storage yards for transport to the property of Hewlett-Packard where they were in the process of installing an underground cable conduit system. Further, the employees were using a telecommunications derrick, as defined in telecommunications standard section 1910.268(s)(38), note 11 supra, mounted on a telecommunications line truck, as defined in telecommunications standard section 1910.268(s)(39), note 7 supra.

We also find merit in the Company's argument that if it were required to train its employees to maintain different [*45] distances from power lines depending on where the lines are located, safety problems could be created. As the U.S. Court of Appeals for the Seventh Circuit said in Brennan v. Butler Lime and Cement Co., 520 F.2d at 1018: "Rules are more likely to be observed if their rationale is understood and it is made clear that they are not just arbitrary pronouncements but are grounded in practical reasons of safety." Employees who are told they must stay ten feet away from energized power lines if the power lines are in one geographic location but may come as close as two feet away from energized power lines if the lines are in another location, even though the latter lines are potentially just as lethal as the former, might well question the logic behind such instructions. Such questioning on the part of employees could lead to a failure to take such matters seriously and a failure to exhibit the caution necessary to prevent accidents.

It is section 1910.268(j)(4)(i), therefore, that we find applicable here.

VI

We turn now to the question of whether the Company violated the Act by failing to comply with section 1910.268(j)(4)(i). There is no dispute that the terms of that standard [*46] were breached. The standard requires that a minimum distance of two feet be maintained from 13.2 kV power lines. In this case, the derrick boom actually touched the line. The Company contends, however, that it is not responsible for this instance of noncompliance because it did not know and could not have known that its employee would violate its safety rule requiring that a three-foot clearance be maintained between the equipment the employee was operating and energized lines. The Company contends that its training and supervision of employees was sufficient to prevent the instance of noncompliance with the standard. We do not agree.

When noncompliance with a standard results from employee action or inaction, the employer is only relieved from liability for the violation if it demonstrates that it took all steps necessary to prevent the employee's noncomplying conduct. To establish this defense of unpreventable employee misconduct, the employer must show that the action of its employee was a departure from a work rule that the employer has effectively communicated to its employees and has uniformly enforced. H.B. Zachry Co., 80 OSAHRC    , 7 BNA OSHC 2202, 1980 CCH OSHD [*47] P24,196 (No. 76-1393, Jan. 31, 1980) and cases cited therein.

The Company has not established this defense. Although the Company had a safety program that included a work rule requiring that a three-foot distance be maintained between the conductive parts of equipment and 13.2 kV lines, the record demonstrates that the rule was not adequately communicated to its employees. Employee McMahon, the operator of the boom that touched the power line, did not know of the three-foot rule. Instead, he was under the mistaken impression that he was only required to avoid contacting energized lines. As we have stated, "[w]ithout effective communication and enforcement of work rules, the protections sought by the standard and the work rule can not be achieved." H.B. Zachry Co., Supra, 7 BNA OSHC at 2206, 1980 CCH OSHD at 29,425. Accordingly, the Company has failed to show that its safety program was adequate to prevent the violation.

In a related argument, the Company insists that it was not required to supervise its linemen more closely than it did in this case because of their high degree of skill and extensive experience. However, even highly experienced employees are entitled [*48] to the protection the Act seeks to provide. As we stated in Butler Lime and Cement Co., 79 OSAHRC    , 7 BNA OSHC 1973, 1975, 1979 CCH OSHD P24,091 at 29,269 (No. 855, 1979), "an employer may not ignore readily available opportunities to take simple precautionary measures that will protect an employee from exposure to life threatening hazards simply because the employee is experienced. See Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir. 1976)." Further, an employer "cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning their dangerous working practices." Danco Construction Co. v. OSHRC, 586 F.2d at 1247.

The Company knew of the presence of the power line. The Company basically, therefore, had two different avenues open to it to avoid a violation here. It either could have trained its employee to maintain the proper clearance distance between the truck boom and energized power lines or it could have made it unnecessary for the employees to work near the power line. Having failed to do either, the Company violated the standard. See Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, [*49] 1979 CCH OSHD P23,278 (No. 15841, 1979).

The Company also argues that as a matter of law we should find it had complied with its safety training obligations because it had not been cited for failing to comply with the telecommunications standard on employee training at section 1910.268(c), note 18 supra. The argument is inapposite. The Company is confusing the requirements set forth in section 1910.268(c), a standard promulgated by the Secretary, which imposes requirements on employers for the training of their employees, and the defense of unpreventable employee misconduct, which may be invoked by employers during Commission proceedings to exculpate them from responsibility when there has been literal noncompliance with the terms of a safety and health standard.

By section 1910.268(c), the Secretary imposed certain requirements for the training of employees in the telecommunications industry. The Company, as it indicates, was not cited for noncompliance with that standard. The Company was cited, however, for failing to comply with the standard at section 1910.268(j)(4)(i), note 2 supra, in that its employee breached the two foot clearance requirement contained in that [*50] standard. Because its employee actually hit the power line involved here, it is clear that the Company failed to comply with the plain terms of the cited standard. The Commission, however, affords the Company the unpreventable employee misconduct defense, by which the Company and possibly exculpate itself from liability for its employee's action. In order to exculpate itself, however, the Company has the burden of proving the elements of that defense as discussed above. The Company was unable to discharge this burden because it could not establish that it had communicated its three-foot clearance rule to employee McMahon. Having failed to prove the defense, the Company was found by the Commission to have failed to comply with the safety standard at section 1910.268(j)(4)(i). Whether the Company did or did not also fail to comply with the independent requirements of section 1910.268(c) is not involved here and is not an appropriate question for us to consider.

We also note that it is not necessary for us to reach the question of whether, as the Company argues, the "repair doctrine" precludes us from considering evidence that the Company moved its cable storage area after the [*51] accident because we do not rely on actions taken by the Company after the accident to find that the Company failed to comply with section 1910.268(j)(4)(i).

VII

Accordingly, we affirm the original citation alleging a serious violation of the standard at section 1910.268(j)(4)(i). n21 The Company is a large employer that has received other citations which have become final orders. Moreover, the gravity of the violation was high. We conclude that a penalty of $700 is appropriate.

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n21 Since we decide that the originally cited 1910.268(j)(4)(i) is applicable, we need not inquire whether the judge acted properly in allowing the citation to be amended several months after the hearing on the merits of the case. Further, we reject as unsupported by the record the Company's contention that the judge's actions in allowing the amendment and in allegedly prejudging the applicability issue in any way prejudiced the Company or "tainted" the proceedings. Finally, by accepting the Company's argument that the applicable standard is the telecommunications standard at 1910.268(j)(4)(i), we eliminate the Diebold issue from the case because the Company concedes that it had notice of the applicability of that standard.

[*52]

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The citation for violation of 29 C.F.R. 1910.268(j)(4)(i) is affirmed and a penalty of $700 is assessed. SO ORDERED

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

For the reasons set forth in Part III of Judge Weil's decision I conclude that the crane clearance requirements of the general industry standards, 29 C.F.R. 1910.180(j), are applicable to the cited working condition rather than the clearance requirements of the telecommunications standard, 29 C.F.R. 1910.268(j)(4)(i). Moreover, there is no functional or geographic relationship between the hazard of the overhanging power line in the storage yard and telecommunications work regulated by the telecommunications standard. The overhanging line had nothing to do with the employees' telecommunications work and the employees were not working at a telecommunications center or field installation.

Under the telecommunications standard there must be reasonable proximity between the hazardous condition and a specific telecommunications activity or location, even if a functional test is applied. The telecommunications standard expressly provides that [*53] only those "operations or conditions" specifically regulated by its terms are excepted from the otherwise applicable general industry and construction standards. 29 C.F.R. 1910.268(a)(3). n1 This conforms to the specific rule of regulatory interpretation for occupational safety and health standards. 29 C.F.R. 1910.5(c). n2 Moreover, it is consistent with the general rule of statutory interpretation that exceptions to the Act and its general standards must be narrowly construed in order to implement the preventive purposes of the statute. See Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Southern Railway Co. v. OSAHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 429 U.S. 999 (1976).

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n1 1910.268 Telecommunications.

(a) Application.

* * *

(3) Operations or conditions not specifically covered by this section are subject to all the applicable standards contained in this Part 1910. See 1910.5(c). Operations which involve construction work, as defined in 1910.12 are subject to all the applicable standards contained in Part 1926 of this chapter.

See also 40 Fed. Reg. 13,436 (1975).

n2 1910.5 Applicability of standards.

* * *

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .

(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies. . . .

[*54]

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The Respondent argues on review that under the principles of Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978) ("Diebold"), it may not be held in violation of the general industry standards because it did not have adequate notice of the possible applicability of these standards. However, the Diebold analysis is inapplicable to the facts of this case. In Diebold, the court held that the cumulative effect of several factors relating to the regulatory history and interpretation of the standards in issue deprived Diebold of a constitutionally sufficient warning with respect to their applicability. Id. at 1336-37. One of the standards involved in Diebold contained a specific exemption for the machinery Diebold's employees were operating (press brakes). Moreover, the court concluded that there was no clear indication that any other standard applied. Id. at 1335-36. n3 In contrast, the telecommunications standard contains a specific reservation of the continued application of other general industry and construction standards, thus expressly limiting the applicability [*55] of the telecommunications standard to telecommunications centers and field installations. 29 C.F.R. 1910.268(a). Moreover, unlike Diebold, there was no previous exemption created by a predecessor or source standard. See 585 F.2d at 1331-33. In fact, the telecommunications standard merely created a limited exception to the otherwise applicable general industry and construction standards. See note 1, supra. Furthermore, Commission precedent already supports the applicability of the construction standards under the scope provision of the telecommunications standard. See Southwestern Bell Telephone Co., 78 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979). The cumulative effect of the Diebold factors is not sufficient to demonstrate that the regulatory warning in this case is inadequate to satisfy the requirements of due process. See 585 F.2d at 1337.

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n3 Compare 29 C.F.R. 1910.217(a)(5) (mechanical power presses -- press brakes) with 29 C.F.R. 1910.212(a)(3)(ii), (iv)(d) (machine guarding -- power presses).

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With respect to the amendment, Judge Weil properly conformed the pleadings to the evidence under Rule 15(b) of the Federal Rules of Civil Procedure for the reasons set forth in his Interim Orders 1, 2 and 3. See Terra Motus Co., 77 OSAHRC 152/B1, 5 BNA OSHC 1696, 1977-78 CCH OSHD P22,040 (No. 14154, 1977); Bill C. Carroll Co, 79 OSAHRC    /   , 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-2748, 1979). The judge's ruling is also consistent with the Commission preference for a decision on the merits. See Duquesne Light Co., 80 OSAHRC    /   , 8 BNA OSHC 1218, 1980 CCH OSHD P23,384 (Nos. 78-5034 et al., 1980); Rollins Outdoor Advertising, Inc., 77 OSAHRC 24/C1, 5 BNA OSHC 1041, 1977-78 CCH OSHD P21,551 (No. 12528, 1977).

Accordingly, I would affirm the administrative law judge's conclusions that 29 C.F.R. 1910.180(j) is applicable to the cited conditions and that the Respondent violated this standard. n4

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n4 The Respondent concedes that it had no rule comparable to the 10-foot clearance requirement under the general industry standard regarding powerlines rated 50 kv. or less. Oral Argument Transcript at 20. Thus, the remaining defense of unpreventable employee misconduct cannot defeat the section 1910.180(j) charge. Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978).

[*57]

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