HOUSTON SYSTEMS MANUFACTURING COMPANY, INC.

OSHRC Docket No. 77-2117

Occupational Safety and Health Review Commission

June 5, 1981

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Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William A. Jones, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Larkin is before the Commission 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 Larkin vacated a citation issued by the Secretary of Labor (the "Secretary") alleging that Houston Systems Manufacturing Company, Inc (the "Respondent"), operated a crane within 10 feet of a power line in violation of the standard at 29 C.F.R. 1910.180(j)(1)(i). n1 The judge found that Respondent had an established work rule requiring the maintenance of a 10-foot clearance from power lines as required by the cited standard and that the work rule was effectively communicated to employees and effectively enforced.

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n1 The standard provides, in pertinent part:

1910.180 Crawler locomotive and truck cranes.

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(j) Operating near electrical 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 rated 50 kv. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.

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Commissioner Cleary directed review of the Secretary's petition. The following issues are before the Commission on review: whether the judge erred in finding that (1) Respondent had an adequate safety program; (2) had taken all necessary and available precautions to protect its employees; and (3) established the defense of "unpreventable employee misconduct." n2

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n2 Because of the disposition of this case, there is no need to address the other issues directed for review: whether the judge erred in excluding evidence as to remedial actions of Respondent; whether it was error to deny the Secretary's motion to amend the citation to allege a willful violation; and, whether the judge erred in failing to find a willful violation of the Act.

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We have reviewed the record and have considered the parties' arguments, which are substantially the same as those arguments made to the judge. We conclude, for the reasons assigned in his decision and [*3] order, that the judge properly upheld Respondent's defense that the noncompliance was the result of unpreventable employee misconduct, and his decision is adopted. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977). n3 Accordingly, the judge's decision is affirmed.

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n3 The Commission has held that an employer may establish the defense of unpreventable employee misconduct by (1) demonstrating the existence of work rules that effectively implement the requirements of the standard at issue, (2) effectively communicating the work rules to its employees, and (3) effectively enforcing these work rules through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations. See Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/El, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978), and cases cited therein. See also H.B. Zachry Co. v. OSHRC, 638 F.2d 812 (5th Cir. 1981); Stuttgart Machine Works, Inc., 81 OSAHRC    , 9 BNA OSHC 1366, 1981 CCH OSHD P25,216 (No. 77-3021, 1981).

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SO ORDERED.