United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, D.C. 20036-3457

APPEARANCES:     

Allison L. Bowles, Esquire

Department of Labor, Office of the Solicitor, New York, New York

For the Secretary

Pietro Lynn, Esquire

Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, Vermont

For Respondent

BEFORE:

The Honorable Dennis L. Phillips

U.S. Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act).

Eustis Cable Enterprises LTD (ECE) is a communications contractor with its corporate office at Brookfield, Vermont that provides manpower and equipment for the construction of communications systems. (Tr. 443; Fact Stipulation (Stip.)1 No. 6). At issue in this case is ECE’s work as a prime contractor to Armstrong Telecommunications, Inc. (Armstrong). (Tr. 488; Stip. Nos. 7-9; Exs. 46 at 3 (Resp. to Interrog. Nos. 1-2), 49-50). Starting in August 2018, Armstrong hired ECE to install fiberoptic (also referred to as fiber) cable pursuant to a series of location-specific contracts within a large project to expand broadband access throughout rural, upstate New York.2 (Tr. 97, 101, 339-40, 614; Stip. Nos. 7-11; Ex. 46 at 3 (Resp. to Interrog. Nos. 2-3)). During October 2019 to January 2020, ECE was performing work in and around Alfred, New York, generally replacing strand and fiber.3 Strand is a support that holds the fiber for lashing. The fiberoptic is fiberglass and the strand is needed to support the fiber in order for it to stay up on the pole. (Tr. 98-101, 115, 340; Stip. No. 7; Ex. 49). During this time period, ECE ran its operations out of the Belmont Field Office under the direction of (former) Project Manager (PM) Timothy Becker.4 PM Becker worked on one project, the Armstrong Telephone, Western New York project, starting in 2017 during the four years he worked at ECE. (Tr. 98-99, 338-39, 342-43, 394; Stip. Nos. 12-13). He supervised at least twenty people out of the Belmont field office. (Tr. 347).

On Monday, January 13, 2020, OSHA learned that a fatality had occurred at 208 Fisher Road, Andover, New York (Incident Worksite), one of ECE’s worksites under PM Becker’s supervision. PM Becker was supervised by Jamie Dodd.5 (Tr. 146, 192, 603; Ex. I at 0336). Foreman AJ died by asphyxiation when the tool line belt he was wearing rose up his body and suffocated him as he traversed the strand to fix a midspan equipment malfunction of a lasher. (Tr. 99, 109, 111; Stip. Nos. 24-25; Exs. 44, I at 336-347, HH at 726, 737).

The Occupational Safety and Health Administration (OSHA) assigned Compliance Safety and Health Officer (CSHO or CO) Michael Willibey to investigate the fatality. CO Willibey was employed at OSHA for over 18 years where he conducted about 1,400 inspections that included about 50 to 60 inspections that involved a fatality. Before that, he served in the Navy as a corpsman for nearly three years. Thereafter, he worked in construction as an engineering technician, foreman, construction superintendent, project manager and general manager. He holds professional certifications in construction, occupational safety and health for general industry, and emergency management. (Tr. 600-03; Ex. I at 336). CO Willibey promptly met with ECE’s Vice President (VP) of Operations Andrew Bauer at the Incident worksite on January 14, 2020. He also visited the Incident Worksite on January 15 and January 16, 2020, when he watched the lasher’s recovery from the strand. (Tr. 604-05, 655).

1. Aerial Line Work

Aerial line work involves work on utility poles. It includes both creating a support system, i.e., strand, and placing fiberoptic cable, and then, lashing the two together. (Tr. 92-93, 100, 114-15). Aerial line crews perform work in the telecommunications space, which is typically located about twenty feet off the ground. It includes both a support strand and fiberoptic cable. (Tr. 102-05, 114-15, 382-83; Exs. 3, 35). There are numerous dangers associated with aerial line work, including electrocution, traffic, falls, falling equipment, and equipment malfunctions. (Tr. 482-83). A typical aerial line crew at ECE consists of a foreman/lineman, a lineman and a ground hand. (Tr. 93, 99).

2. Lashing Work

The purpose of lashing work is to connect the fiberoptic cable to the support strand. (Tr. 114-15). During lashing activities, the role of the lineman is to ascend to the telecommunications space, which they do either via the boom of a bucket truck or by climbing utility poles. (Tr. 93-94). Typically, lashing work starts when the lineman attaches a 50-to-70-pound lasher or lasher machine to the support strand, along with a rope and/or mule tape (also referred to as “muletape”, “mule string,” or “mule line”) that hangs from the lasher down to the ground.6 Lashing work is done when the lasher runs along the strand and wraps the strand and fiberoptic cable together with “lashing wire” (Tr. 112-15, 211; Exs. 35, 46 at 4-5 (Resp. to Interrog. No. 11)). The lasher has two rubber wheels that sit on the strand that move when the lasher is pulled. (Tr. 112-16, 212-15, 222, 224; Exs. 7, 35, 62 at 14). During lashing activities, the role of the ground hand is to pull the lasher sending it from pole to pole and handle materials in case the linemen need materials on the pole. (Tr. 93-94, 117). Once the lasher is set up, the ground hand pulls the rope from one pole to the next from below, careful to keep tension on the rope so that the lasher does not flip off the line.7 (Tr. 92-93, 224-25, 367). As the ground hand pulls the rope, the lashing machine moves along the strand, wrapping the fiberoptic cable and the support strand together with lashing wire. (Tr. 114-15, 385; Ex. 46 at 4-5 (Resp. to Interrog. No. 11)). At each subsequent pole, a lineman manually transfers the lasher from one side of the pole to the other and sets the lasher up again. (Tr. 106).

ECE did not complete a job hazard assessment form8 for the Armstrong Project, the Alfred job, or the Incident Worksite, despite the requirement that it do so in its Eustis Cable Enterprises, LTD Safety Manual at Exhibit C. (Tr. 432-33, 441-43; Exs. 46 at 7-8, C at 0110 at Part C). ECE did not create a site-specific safety plan for its work on the Armstrong project, including the Alfred job. (Ex. 46 at 7 (Resp. to Interrog. No. 6)). During the Armstrong Project, including the Alfred job, about 50% of the work ECE’s aerial line crews performed involved placing the support strand and about 50% of the work ECE’s aerial line crews performed involved placing the fiberoptic cable on the support strand, including lashing the fiber to the strand.9 (Tr. 100). On the Armstrong Project, including the Alfred job, about 50% of the work occurred off-road in easements, which could include work in fields or up and down mountainsides. (Tr. 118-19).

There are no discipline records in the record issued by PM Becker on the Armstrong Project other than one he issued to AJ, when, a week after he was hired, he got a police ticket for failing to stop at a DOT inspection site.10 (Tr. 384; Ex. 56 at 10-12). The only other discipline record in evidence from the Armstrong Project was issued to a member of a splicing crew for not wearing a vest or hard hat on August 19, 2019. This was issued by Brian Carlson, who supervised ECE’s splicing crews. (Tr. 573-74; Ex. 54 at 9).

PM Becker reported to VP Bauer. Bauer became VP of Operations in 2017, and in that capacity, he oversees safety. He said “[w]e put a lot of emphasis on having a very robust, good safety program.” He has worked at ECE since 2002. (Tr. 395, 430, 481-85). PM Becker was supposed to fill out field inspection reports weekly, but he was “lax” about it. (Tr. 425-26). There is no record of any inspection of the Crew that included Foreman AJ, [redacted] and [redacted] (together “the Crew”) during AJ’s employment with ECE. (Tr. 425-26, 597; Stip. No. 15). CO Willibey testified that he did not believe ECE’s inspection program “raised to the level required for the work that they were doing.” (Tr. 630-31).

On January 13, 2020, PM Becker assigned the Crew to lash, i.e. connect or wrap, fiber- optic cable to an existing support strand11 between various utility poles.12 (Stip. Nos. 14-15; Ex. 46 at 4-5 (Resp. to Interrog. No. 11)). Fiberoptic cable is made of glass and needs some “form of support to stay up on the pole” line. (Tr. 115). The strand provides that support. (Id.) This work generally occurred here about twenty feet off the ground. (Tr. 102-05, 382-83; Stip. No. 21; Ex. 3).

By January 13, 2020, each of the three Crew members was still relatively new to ECE. PM Becker hired AJ as a foreman on October 21, 2019.13 (Tr. 99, 348, 352, 99; Stip. No. 24). He hired [redacted] around the same time. (Tr. 178; Ex. S at 440). [redacted] had joined ECE a few weeks prior. (Tr. 353).

Foreman AJ, [redacted] and Foreman Henry Cole14 started their telecommunications careers in Jamaica. (Tr. 91-92, 140-41, 294-95; Ex. 56 at 2). [redacted] worked in the telecommunications industry in Jamaica from about 1994 to about 1999,15 again from 2003 to 2008 where he worked at his brother’s company, [redacted]’s Cable, and then not again until 2018, when he migrated to the United States and worked at Crammer and O’Connor (Crammer), a U.S. telecommunications company and sub-contractor to ECE, that did the same lineman work as ECE. Cole introduced [redacted] to Crammer. [redacted] worked at Crammer for about six to seven months. AJ worked for Crammer from an unknown date in 2018 to at least August 15, 2019. (Tr. 534, 566-68; Exs. 56 at 1, 3, 57).

On August 15, 2019, AJ was involved in an incident while working for Crammer in an easement. The incident resulted in a loss of power to about 75 customers for 30 minutes and required the power company’s assistance. (Tr. 422-23, 545-47; Ex. 57). There was no documentation about the August 15, 2019 incident, or any other discipline records, in ECE’s Personnel File for AJ. (Tr. 531, 567-68; Ex. 46 at 10, Req. For Produc. Nos. 24, 56). ECE hired AJ without any proof that AJ had had any OSHA-10 or OSHA-30 training. (Tr. 447, 564-66; Ex. 56). AJ attended ECE’s new hire orientation on October 26, 2019. (Ex. S at 0435). AJ scored poorly on the driving test at orientation and had to retake the examination. (Tr. 425). Within a week of his hiring by ECE, AJ received a New York State police ticket for his failure to stop at a DOT inspection site. (Tr. 424-25, 536-39; Stip. 24; Ex. 56 at 10-12).

Foreman Cole told PM Becker that AJ was capable of running his own crew. (Tr. 140). [redacted]

PM Becker assigned AJ, [redacted] and [redacted] to be an “aerial line crew,….” (Tr. 190, 353). He determined that AJ would lead the Crew as Foreman. (Tr. 352). AJ also worked as a lineman in the Crew, as did [redacted]. (Tr. 189-90). [redacted] was the Crew’s ground hand.16 (Tr. 93-94, 115-18, 189-91).

The Crew met at the Belmont Field Office. (Stip. No. 14). The Crew did not have a conversation about the day’s assignment. (Tr. 193-94). PM Becker’s assignment to the Crew was detailed on a design blueprint (hereinafter “print”) of the pole line, with relevant information related thereto. (Tr. 194-95; Ex. 58). The Crew’s scope of work involved several worksites on a section of the pole line that ran both along the roadway and offroad, or through, easements. (Tr. 118; Exs. 46 at 4-5 (Resp. to Interrog. Nos. 6, 12), 58). Foreman Cole testified that a Crew’s Foreman was responsible for making sure that the Crew had the equipment that it needed for the day’s job. (Tr. 95-96). PM Becker testified that the equipment needed to do the work at the Incident Worksite included a lasher, rope, and belt, and some hooks. (Tr. 409).

The work began offroad in a wooded easement on the south side of Fisher Road and then ran roadside along Fisher Road, before ending in another easement on the north side of Fisher Road. The Incident Worksite was about 20 to 25 miles away from the Belmont field office. (Tr. 397-98; Exs. 46 at 5 (Resp. to Interrog. No. 12), 58 at 2-3). About half of the poles on the day’s print were not roadside accessible, including the poles at the Incident Worksite. (Ex. 58). The Crew had been to the Incident Worksite before December 25, 2019 and was familiar with the terrain. (Ex. 61 at 10). The Crew knew that the pole line crossed over a lake17 and understood that the lake would impact how it could run the lashing machine.18 (Tr. 223-25). Before leaving the Field Office, the Crew “got the truck stocked up” with tools. (Ex. 61 at 7-8). The Crew’s truck was brand new; just the day before, AJ drove to ECE headquarters in Vermont and exchanged the Crew’s previous truck for a new one. (Tr. 207, 356). Neither truck was equipped with a ladder and the Crew did not bring one with them on January 13, 2020.19 (Tr. 208-09, 256; Stip. No. 1). The equipment on the new truck included a lashing machine which had neither a top lock or a back gate20, lashing wire, and three layup sticks.21 (Tr. 211-12, 222-23, 236; Stip. Nos. 2-3; Ex. 35). The two linemen, [redacted] and Foreman AJ, also had pole climbing equipment. (Tr. 212; Exs. 44, HH at 737).

  C. The Incident Worksite

To reach the first worksite on the print, the Incident Worksite, the Crew drove about 30 minutes along back country roads. (Tr. 282-84, 613-14). The Crew parked the truck in a farmer’s driveway off of Fisher Road. (Tr. 210-11; Exs. 58A at “E”, 61 at 10). The Crew carried the lasher and their tool belts from the truck for “several hundred yards” through a field and into the wooded area, where the majority of the relevant pole line was located. (Tr. 211, 605-08; Exs. 32, 37-41, I at 0335). The Crew’s work at the Incident Worksite included three utility poles, including two on the east side of the lake. (Tr. 194-201; Ex. 58A (Poles “A-C”)). The span across the lake was one of the longest on the day’s print, at 407 feet. (Ex. 58).

From the road, the Crew proceeded directly to the first pole, Pole A, on the print, without doing a “walk-through” of the Incident Worksite “to identify sources of hazards”.22 (Tr. 211; Exs. 58A at “A”, C at 0110). At that point, the crewmembers split up. (Tr. 212-13, 608-09; Exs. 58A, 64 at ¶ 223). While [redacted] climbed Pole A with the lasher, [redacted] stayed on the ground beside Pole A and AJ walked over to and climbed up Pole B. (Tr. 213, 609; Exs. 32, 58A at “A”, “B”). Eventually, [redacted] got the lasher up to the strand and prepared it to send to Pole B. (Exs. 58A at “B”, 64 at ¶ 2). [redacted] pulled the lasher over to Pole B. (Tr. 212, 215; Ex. 58A at “B”).

Once [redacted] reached Pole B, AJ, already atop the pole, manually took the lasher from one side of the pole to the other and prepared the lasher for its journey to Pole C on the other side of the lake. (Tr. 215-17, 609; Exs. 29, 58A at “B”, “C”). The Crew did not have a boat for the crossing and the lake was “too far around to pull the lasher” from either side of the lake. (Tr. 220-21, 225; Ex. 58A at “D”). Instead, the Crew planned to regroup on the western side of the lake and pull the lasher across the lake from there. (Tr. 221; Ex. 58A). To that end, AJ took two extra steps to ready the lasher to cross the lake. (Tr. 222-24; Ex. 58A at “D”). First, AJ attached mule tape to the lasher. (Tr. 226-27, 232, 555-56; Ex. 16 [white line hanging below the lasher is mule tape]). On January 13, 2020, the mule tape ran from the lasher on the east side of the lake, into and across the lake, onto the western shore of the lake, and across the land to a place where the Crew had attached it to a tree trunk. (Tr. 227-28; Exs. 16, 18-20, 58A at “D”). The photograph at Exhibit 16 shows cable to the right of the mule tape. (Tr. 226; Ex. 16).

Second, AJ attached two balls of lashing wire to the front of the lasher while he was on Pole B. (Tr. 223; Ex. 35). He did this because the Crew was aware that, due to the distance and the lack of tension under the lasher as it made its way across the lake, the lasher may tip over on its side. (Tr. 113, 223-24, 366-67; Ex. 35). Attaching balls of lashing wire to the machine was an attempt, albeit an inadequate one, to weigh the lasher down and keep it stable for the lake crossing. (Tr. 222-25; Ex. 61 at 18-19). Once AJ completed his work atop Pole B, he descended. (Tr. 229; Ex. 58 at “B”). [redacted] walked the lasher as close to the edge of the east side of the lake as he could. (Tr. 217-19, 229; Ex. 58A at “D”).

2. Lasher Malfunction Between Poles B to C

During lashing work, “[l]ashers frequently become disabled, entangled, stuck or otherwise requiring service at a working altitude,” including in the space between two poles, or midspan. “This is a daily [sometimes several times in a day] occurrence …” “ECE does not track stuck lashers, it is a frequent item that is part of typical routine construction activities.” (Tr. 119-20; Ex. 46 at 5-6 (Resp. to Interrog. Nos. 14, 17) at 11-12 (Resp. to RFP No. 34)). How to handle a lasher malfunction “var[ies] with the circumstances . . . .” (Ex. 46 (Resp. to Interrog. No. 14)). ECE’s safety program does not include any instructions on midspan work generally or on lasher malfunction specifically. (Exs. 46 (Resp. to Req. For Produc. Nos. 14, 30, 34), 56, C). When a stuck or flipped lasher occurs midspan where it is accessible from the road, an aerial line crew uses its bucket truck to access the span and address the issue. (Tr. 120). Specifically, “the individual would operate the bucket to the appropriate working height, address the issue and either remove the lasher from the line or continue lashing.” (Ex. 46 at 6 (Resp. to Interrog. No. 18)). If the lasher malfunctions off-road, the bucket truck is not a viable option to address the problem. (Tr. 119-121, 209, 364-65, 413). Instead, Foreman Cole testified that he would “[p]ull it [lasher] back to the pole or use a layup stick to push it over.” (Tr. 120).

The Crew eventually met again on the west side of the lake. [redacted] arrived first. From that side of the lake, [redacted] planned to pull the lasher with the mule tape. (Tr. 230; Exs. 58A at “D”, 64 at ¶¶ 4-8). But when he got to the shore, he unexpectedly found that about five feet of the mule tape was frozen under ice. (Tr. 231-32; Exs. 61 at 17; 64 at ¶ 5). Once [redacted] had joined [redacted] on the west side of the lake, they worked to free the mule tape from the ice, eventually freeing it. In so doing, however, “it overturned the lasher” and it stopped moving on the mule tape in the direction toward Messrs. [redacted] and [redacted]. (Tr. 231-33, 300-02; Exs. 61 at 17-18, 64 at ¶¶ 5-6, I at 0340).

By the time AJ arrived at the west side of the lake, [redacted] and [redacted] knew there was a problem with the lasher. (Tr. 233-35; Exs. 58A at “D”, 64 at ¶¶ 7-8). The Crew attempted to pull the lasher across the lake a second time to no avail. (Ex. 64 at ¶ 8). When it was clear the lasher was stuck, Messrs. [redacted] and AJ went back to the east side of the lake with the truck. (Tr. 233-35; Exs.16, 58A at “D”, 64 at ¶¶ 10-11). [redacted] stayed on the west side of the lake. (Tr. 233-34; Ex. 58A at “D”). Before [redacted] and AJ left, [redacted] suggested they go get the layup sticks off the truck and try to see if they could use them to right the lasher “because a lot of the times you can just use the lap stick and put it on, back on the line.”24 (Tr. 235, 304-05; Ex. 58A at “E”).

3. Troubleshooting Efforts and Attempts to fix the Stuck Lasher

There are several options for reaching and repairing a lasher that has malfunctioned midspan without a bucket truck. According to PM Becker, the “best way” to reach the appropriate working height in an easement, is to use “a ladder.” (Tr. 413; Exs. 46 at 5-6 (Resp. to Interrog. Nos. 13, 18); 53). Sometimes layup sticks may be used to address a malfunctioning lasher. (Tr. 119-20, 234-35, 364-65). Sometimes you can just pull the lasher back to the pole and start over. (Tr. 120, 146-47, 272; Ex. 53). Another way to address lasher malfunction midspan is to lower the strand by loosening the clamp. (Tr. 146-47, 312-13, 330, 373-382; Ex. 46 at 5, 12 (Resp. to Interrog. No. 13, Req. For Produc. 34). Lowering the strand is the more time consuming and labor-intensive option. (Tr. 615). During his 25 years with ECE, Foreman Cole has never lowered the strand to address a stuck lasher. (Tr. 123). In his short time with ECE, [redacted] has never lowered the strand to fix a stuck lasher. (Tr. 330). On January 14, 2020, [redacted] told Bauer that he would have taken the strand out of the clamp and let it go. But, Bauer later rejected that suggestion as the appropriate course of action. (Ex. 61 at 29). Another way that linemen can, and do, access difficult-to-reach equipment midspan is by traversing the strand. (Tr. 254, Exs. 55, I at 338-43).

Back on the east side of the lake, AJ “discovered that the lashing machine was stuck because it had flipped upside down.”25 (Ex. I at 340). The Crew made some initial efforts to reach the lasher, both from the ground and from a working altitude. [redacted] testified that the Crew did not think about using a ladder. [redacted] did not “know if it [a ladder] would reach up there either.” There was no ladder on the truck. The Crew would have to call PM Becker and request a ladder be brought over to the Incident Worksite.26 [redacted] said “[i]t’s hard to put a ladder there”, on a slope and in the bush away from the road.27 But, CO Willibey testified that two workers could have carried an extension ladder from Fisher Road to Pole B. (Tr. 636; Ex. 58A at “B”, “E”). PM Becker testified that “[w]hen a lasher becomes stuck, our employees were supposed to use a ladder to reach the lasher if possible.” (Tr. 374).

VP Bauer investigated the Worksite Incident for ECE. He visited the Incident Worksite and interviewed management team members and Crew members who worked at the Incident Worksite.28 (Tr. 558-60). VP Bauer testified that he thought that use of a ladder at the Incident Worksite “might have been an option” and was “a safe alternative.” (Tr. 461-63). He also admitted to saying at his deposition that “I believe it could have been safe to use a [typical fiberglass extension] ladder [with hooks], absolutely.” VP Bauer admitted that such a ladder was a common tool in ECE’s line of work. (Tr. 463-64, 496-97). He said the Crew would have to first get the ladder’s hooks over the top of the line and let the ladder sink back into the line. (Tr. 464-65). The Court finds that the Crew could have used a ladder to work on the lasher if a ladder was available at the Incident Worksite. (Tr. 327-29).

PM Becker testified at trial (also referred to as “hearing”) that he had signed an affidavit, which he acknowledged as true and accurate, that when a lasher becomes stuck and a ladder will not reach the lasher employees were supposed to cut and lower the steel cable. Becker testified at trial that the employee would “put a “block and tackle” up on the pole and you’d attach the strand to it, and then you would cut the strand and lower it down.” PM Becker also said a “chain hoist” would be equally useful. (Tr. 375, 380). PM Becker said ECE’s “Crews were instructed to use those proper and safe methods [ladder use and cut and lower cable strand] to reach a lasher.” (Tr. 374-75).

  (c)  Layup Sticks: from the Ground and from a Tree

Foreman Cole testified that the use of layup sticks was the best way to flip over a lasher that has flipped over and gotten stuck. (Tr. 146). [redacted] said the easiest way to fix the lasher “was just to pull back the [lasher] machine if we can use the lap stick and get it [the lasher] up.” (Tr. 306, 311-12, 317, 662; Ex. JJ at 1). AJ and [redacted] took [redacted]’s suggestion and went to the road to get layup sticks off the truck.29 (Tr. 235; Ex. 64 at ¶ 10). The Crew had three layup sticks on the truck. [redacted] testified that each of the three layup sticks was about eight to ten feet long, but he was not sure.30 (Tr. 236; Ex. 61 at 23). PM Becker testified that ECE’s layup sticks are either six-foot sections or three-foot sections in length. He said ECE normally put three six-foot sections and one three-foot section on their trucks.31 (Tr. 382). Both [redacted] and AJ tried to use the pole made up of layup sticks to “flip the lashing machine over but it [the pole made up of three layup sticks] was too short.” (Exs. 61 at 24, I at 0340). [redacted] said in his January 15, 2020 interview that the pole did not have “enough length”. (Ex. 64 at ¶ 11). [redacted] testified that AJ probably needed another layup stick for the pole to fix the situation. On January 15, 2020, [redacted] told CO Willibey that the layup stick they had at the worksite “wasn’t long enough.” (Tr. 236; Ex. JJ at 1). [redacted] told Bauer on January 14, 2020 that AJ probably needed five sticks to get under the lasher. (Ex. 61 at 23). AJ was “barely able to touch the lasher” from the ground using the three layup sticks. (Ex. I at 340). Next, [redacted] climbed almost twenty feet up an adjacent tree with the three layup sticks to try to fix the lasher.32 (Exs. 61 at 25, 64 at ¶ 12). But even “holding the very end” of the sticks, [redacted] could “barely control it”. He could “just get it onto the lasher but” could not fix it from the tree. (Ex. 61 at 25). [redacted] stated in a statement made under oath on March 6, 2020 that the Crew tried, but failed, to: 1) free the lasher with the poles taken from the truck and 2) pull the lasher back. He said that “It [the lasher] remained stuck in place.” (Tr. 326).

(d)  The Lasher Would Not Pull Back

After efforts with the three layup sticks failed, AJ stood “underneath the lasher looking up” and determined that “the lasher would not pull backwards,….” to Pole B. [redacted] told VP Bauer on January 15, 2020 that AJ told both him and [redacted] “that the lasher would not pull backwards.” (Tr. 237-38, 309; Exs. 58A at “B”, 61 at 26-27, 85, 64 at 2). [redacted], back on the east side of the lake, suggested to AJ, who was already up on the strand halfway from Pole B to the lasher, that AJ should “pull the lasher back to the Pole [Pole B].”33 He said AJ heard his suggestion and AJ responded that “[i]t wouldn’t pull back.” [redacted] figured that AJ “was seeing something that [he] didn’t see when he was underneath it,” – for instance, that maybe the strand “was pinched.” (Ex. 61 at 27, 85-86). In any event, at that point the mule string attached to the lasher “was way out of reach….”34 (Exs. 11, 16, 61 at 26). The Court finds that AJ tried to pull back the lasher before going out on the strand but was unable to do so. (Tr. 237-38, 309; Exs. 58A at “B”, 11, 16, 61 at 26-27, 85-86, 64 at 2).

(e) Trash Can

Meanwhile, [redacted] found a residential trash can (or bin) by a trailer in the woods at the lake’s west side and brought the can over to the east side of the lake. (Tr. 238-39; Exs. 12, 26). His thought was that the Crew could turn the trash bin upside-down underneath the lasher, stand on top of the trash can and from there, use the three layup sticks to get the extra height to reach the lasher. (Tr. 238-40, 667; Exs. 12, 25-26, 64 at ¶ 16, JJ at 2). The photograph at Exhibit 25 shows the trash bin “pretty much probably underneath it [the lasher]” where [redacted] put it.35 (Tr. 240-41; Ex. 25). But doing so was no longer necessary because by the time [redacted] arrived at the east side of the lake with the trash bin, AJ was already up on Pole B wearing [redacted]’s belt and out on the strand wire.36 (Tr. 240-43, 612; Exs. 44, I at 340, HH-726).

Prior to the Incident, PM Becker had seen people go out on the strand. (Tr. 413-14). [redacted] too had seen “guys” in Jamaica go out on the strand.37 (Tr. 255, 299, 658; Ex. JJ at 1, 8). Prior to the Incident, VP Bauer had also heard of people going out on the strand. (Tr. 474, 615-16). [redacted] also had heard of people going out on the strand. (Tr. 615-16, Ex. 61 at 72).

The day after the Incident, [redacted] told VP Bauer that he personally did not want to traverse the strand because he knew his “physical limitations” and the work “is harder than it looks.” (Exs. 61 at 30, 34-35, 64 at ¶ 14). He told VP Bauer that AJ, “acted like he had [traversed the strand] a million times….” (Ex. 61 at 71).

On January 14, 2020, [redacted] told VP Bauer that he considers what AJ did to be a “last resort” option. (Tr. 254-56). VP Bauer considers what AJ did “old school cowboy cable stuff.” (Tr. 474). On Oct. 22, 2018, another ECE field employee went out on the strand in Bethel to reach equipment during work “off road”. (Ex. 55). This employee walked on the strand like a tightrope. (Tr. 470-74; Ex. 55). ECE’s Employee Warning Notice for the offense of violating company policies stated that the Plan for Improvement was that the employee “will use a ladder when equipment is difficult to reach on off road poles.” (Ex. 55).

AJ first “mentioned going out onto the strand to fix the lasher” when [redacted] got down from the tree. (Ex. 64 at ¶ 14). [redacted], the only one of them who had his climbing belt at that moment38, told AJ, “I cannot do that, I know it’s harder than it looks.” (Tr. 242, 580-81; Exs. 61 at 30, 64. at ¶¶ 14-15). [redacted] gave AJ his tool belt and rope lanyard. (Tr. 242, 612; Exs. 44, HH-726). He “didn’t know to say [to AJ], ‘You’re not doing this right.’” (Ex. 61 at 31). [redacted] had heard of guys who had done this technique, and AJ “acted like he had done it a million times,” so [redacted] “thought [AJ] had done [it] before” too. (Tr. 615; Ex. 61 at 32, 71-72).

Once AJ got to the strand, he put [redacted]’s rope lanyard over the strand a single time and began “to shimmey [sic] out on the line upside down.”39 (Exs. 61 at 35-36, 64 at ¶ 18). He was “wearing the belt . . . like you normally would climb” and “even put it … up under his butt” like “he was going to sit on the strand kind of in a seat.” (Ex. 61 at 36). [redacted] testified that AJ pulled himself out to the lasher with his hands. When AJ reached the lasher, some 35 feet from Pole B, he fixed it. (Tr. 243, 309-10; Exs. I at 338, 61 at 39, 64 at ¶ 19). “He [AJ] had one hand on the strand, reached to the lasher” and flipped it [the lasher] back into place. (Tr. 243; Ex. 61 at 39).

4. Rescue Efforts Trying to Save AJ

At about 11:20 a.m.40, January 13, 2020, on his uphill journey back to Pole B, AJ began to struggle. [redacted] testified that AJ was about twenty feet from Pole B and was getting tired. (Tr. 243-44; Exs. 64 at 1, I at 0338, 0340).

AJ was “roughly halfway [back] to the pole [Pole B] when…the waist belt begin [sic] to slide up his back…” and eventually cinched up to his chest. His body became perpendicular with the ground. From the ground, Messrs. [redacted] and [redacted] spent a couple of minutes “trying to improvise” ways to help AJ, who was about fifteen feet off the ground. [redacted] first used the three layup sticks with a hook at its end to put over the strand to try to balance AJ on the layup sticks and allow him to catch his breath. The layup sticks were about two inches thick. AJ wrapped his legs around the layup sticks, but more needed to be done. (Tr. 244-45, 248; Exs. 61 at 49, 64 at ¶ 21, I at 335, 338).

[redacted] then climbed up a tree near AJ to loosen AJ’s belt so AJ “could come down on the [layup] stick.” [redacted] testified that he [[redacted]] “put my foot through the stand trying to get him to loose[n] because he said he wasn’t breathing. I was telling him to ease up so I could loose[n] his belt. He wasn’t making no effort to do it.” (Tr. 245).

On the ground, [redacted] found a 13 to 15-foot log in the woods41 to give AJ something wider to balance on. [redacted] and [redacted] put the 13 to 15-foot log next to the layup stick. AJ was able to “stand” on the log with one foot, off and on. [redacted] told Bauer on January 14, 2020 that AJ would “get his balance for a second. And then it [the log] would kick out.” While holding the log upright, [redacted] screamed at AJ to “Slide out of the belt. Unclip it. Unclip it.” Meanwhile [redacted] ran to the truck parked about 200 to 400 feet away to retrieve AJ’s belt while AJ was still conscious and fighting to save himself. While [redacted] is still holding the log upright, AJ, no longer able to stand on the log, suddenly “went limp” and became unconscious. [redacted] grabbed the three layup sticks and “hooked his [AJ’s] hook. And I’m pulling him. I’m trying to pull him through this belt”, but to no avail. (Tr. 244-54; Exs. 24, 31, 61 at 30, 47-65, 64 at ¶¶ 22-28, 32, I at 338-40, HH at 737).

[redacted] returned from the truck and gave [redacted] AJ’s belt and a machete.42 By the time [redacted] returned to Pole B, AJ’s body was “limp” on the line. (Tr. 251, 613; Exs. 61 at 60, HH-737). [redacted] climbed up Pole B. [redacted] repeated the steps AJ had used to get to the lasher: he put AJ’s pole strap over the strand, slid AJ’s belt under his butt and went out “head first” twenty or so feet towards AJ. With one hand, [redacted] “pulled [his] weight up and [with] the other hand, [he] slid the [pole] strap” along. (Ex. 61 at 59). After reaching AJ, [redacted] first unsuccessfully tried using a “nipper”, used to cut wire, to try to cut AJ down. He then took about 6 to 10 swings of the machete to cut the rope lanyard AJ had tied over the strand. AJ then dropped down to the ground. (Tr. 244-54; Exs. 24, 31, 61 at 30, 47-65, 64 at ¶¶ 22-28, 32, I at 339-40, HH at 737).

With great difficulty, [redacted] made it back from where AJ had been to Pole B, while screaming “I can’t do it, man. I can’t do it”, I can’t [expletive deleted] breath”, and “I’m not going to make it” because he was having to go “straight uphill” on the strand. [redacted] “felt like I [he] was fighting for my life for a minute.” He “flipped around,” was “upside down,” and “almost went … ass over teacup on the strand.” Eventually, he “ended up getting [his] leg back on top of the strand.” [redacted] said [redacted] was “panicking” while traversing the strand back to Pole B. (Tr. 244-54; Exs. 24, 31, 61 at 30, 47-65, 64 at ¶¶ 22-28, 32, I at 339-42, HH at 737). [redacted] stated going out on the strand to get to AJ was “scarier than anything” he had ever done. (Ex. 61 at 72).

Two days after the Incident, ECE issued a Safety Alert about AJ’s death, instructing: “There will be NO midspan excursions allowed for any reason. Use a ladder or pull the lasher back and start over.” (Emphasis in Original). (Ex. 53).

Code Inspector Baena was employed by Advantage Point Solutions and was assigned to inspect ECE’s work. She reached Pole B as AJ’s body fell to the ground. (Tr. 253; Ex. I at 336, 342). By this point, AJ had been hanging by his belt for approximately six to fifteen minutes. (Ex. I at 339-40). AJ did not have a pulse. (Ex. I at 342). Code Inspector Baena knew the Crew’s location and called 911. (Ex. I at 342). Code Inspector Baena also performed CPR but was unable to revise AJ. (Ex. I at 342).

D. Citation 1, Item 2 – Training at ECE

ECE did not prepare a “certification record” reflecting that ECE provided AJ, [redacted] or [redacted] with training in the “precautions and safe practices” set forth in 29 C.F.R. § 1910.268. (Tr. 447-49). ECE did not obtain any “certification record” or other such documentation showing that AJ, [redacted], or [redacted] received training in the “precautions and safe practices” set forth in 29 C.F.R. § 1910.268 prior to his employment with ECE. (Tr. 447-51). ECE did not provide AJ, [redacted], or [redacted] training on aerial lifts as required by ECE’s safety program. (Tr. 126-27, 359-60, 456; Exs. 46 at Req. For Produc. No. 12, 56 at 25, A at 1, C at 011-15).

ECE did not provide AJ, [redacted], or [redacted] training on the “specific use of ladders for line work,” before commencing work, as required by ECE’s safety program, or at any time before the Worksite Incident. (Tr. 128, 359-60, 449-52; Ex. 56 at 25). ECE did not have a “qualified person” certify AJ, [redacted] or [redacted] in pole climbing before allowing them to climb poles, as required by ECE’s safety program, or at any time prior to the Worksite Incident. (Tr. 128, 456-57; Ex. 56 at 25). ECE did not provide AJ, [redacted], or [redacted] with fall protection training before working at heights, as required by ECE’s safety program, or at any time before the Worksite Incident. (Tr. 127, 359-60, 454-55; Exs. C at 0043-46, 56 at 20). ECE did not ensure that Messrs. AJ, [redacted], or [redacted] viewed the instructional video on the Buck Squeeze, which is a body belt system that provides fall protection that ECE required employees to wear “while climbing wood poles”. (Tr. 457; Exs. A at 1; C at 0124, 0146). ECE did not provide AJ, [redacted], or [redacted] with training in specific personal protective equipment (PPE), as required by ECE’s safety program. (Tr. 127, 359-60, 631-32; Ex. C at 108-13, Appendixes A, C). There are no training records in AJ’s personnel file. (Tr. 577, 631-32; Ex. 56). ECE does not specifically train its subcontractor employees. (Tr. 584).

PM Becker does not have OSHA-30 training. (Tr. 361). PM Becker did not provide any classroom training at ECE. (Tr. at 359-60). In his four years at ECE, PM Becker did not receive or give training on OSHA’s telecommunications standard.43 (Tr. 338, 360-62). He did not give or receive any training on how to address stuck or flipped lashers. (Tr. 362). Lasher troubleshooting is not included in ECE’s new employee orientation. (Tr. 362; Ex. 56). PM Becker never told anyone that they should not go out on the strand. (Tr. 363-64). He never provided any training on how to use layup sticks. (Tr. 362). PM Becker is not aware of ever being with the Crew when it encountered a stuck or flipped lasher. (Tr. 426). PM Becker has no knowledge of foremen AJ and Cole confronting a stuck lasher while working together. (Tr. 426).

Neither Cole nor Becker is aware of AJ ever encountering a stuck or flipped lasher.44 (Tr. 134, 426). Cole does not provide any formal training at ECE.45 (Tr. 127). For instance, Cole does not provide training on ladder usage. (Tr. 128). Cole has never certified any ECE employee in pole climbing. (Tr. 128). Cole never provided AJ with formal training after he was hired by ECE. Cole believed that he “didn’t have to teach [AJ] anything” given his experience. (Tr. 126). Cole did not provide AJ with any training on troubleshooting lasher issues. (Tr. 123). Cole has not received any training on troubleshooting stuck lashers from ECE. (Tr. 123). AJ’s and Cole’s crews “joined together and did a couple of jobs” together. (Tr. 126-27). Cole never told anyone not to go out on the strand. (Tr. 125-26). No one at ECE ever told Cole not to go out on the strand. (Tr. 125). Cole does not have any certification of training under 29 C.F.R. § 1910.268. (Tr. 129).

E. Citation I, Item 3 – Tools and PPE

The Crew did not bring a ladder to the Incident Worksite on January 13, 2020. (Tr. 209, 256; Stip. No. 1). Foreman Cole testified that he would have called PM Becker or his supervisor Mr. Dodd if he needed to get a ladder to use at a worksite. (Tr. 145). On January 14, 2020, [redacted] told VP Bauer that he thought AJ would have used a ladder had one been on the truck. (Tr. 271-72). The Court finds that it would have been possible to use a ladder to reach the lasher at the Incident Worksite on January 13, 2020. (Tr. 327-28, 369-70).

Layup sticks are fiberglass sticks can be attached together and used to reach a stuck or flipped lasher. (Tr. 121, 493). Per PM Becker and Foreman Cole, standing on a trash can with layup sticks is not a safe practice. (Tr. 122-23, 383-84). Per PM Becker and Foreman Cole, using layup sticks while climbing a tree is not a safe practice. (Tr. 122-23, 384). The Court finds that had the Crew had access at the worksite to the normal complement of four layup sticks capable of reaching up to twenty-one feet the Crew would have been able to flip the stuck lasher back upright on the strand which was about eighteen to twenty feet off the ground. (Tr. 236, 243; Exs. 64 at ¶ 11, I at 340, JJ at 1; Stip. No. 21).

Another way to address a lasher malfunction midspan is to pull it back to the pole and start over. (Ex. 53). At the Incident Worksite, AJ stood underneath the lasher and determined that it would not pull back. (Tr. 237; Ex. 61 at 27). AJ told both Messrs. [redacted] and [redacted] that the lasher would not pull back. (Exs. 61 at 85; 64 at ¶ 13). The Crew did not have any gear with it on January 13, 2020 to safely traverse the strand. (Ex. 61 at 30). ECE does not issue combination climbing/fall protection harnesses to its aerial line crews. (Tr. 388-89, 628). VP Bauer testified that ECE did not issue PPE to AJ for use when sliding out on the strand line because ECE employees “don’t do that. It’s not allowed.” (Tr. 553). But if AJ had been wearing a combination climbing and fall protection harness, he would not have been exposed to caught-in and fall hazards when he went out on the line wearing a climbing belt. (Tr. 634).

The following facts and law were stipulated to by both parties in the Joint Pre-Hearing Statement (J. Pre-Hr’g Statement) and the stipulations were accepted by the Court. (Tr. 76).

(Tr. 76; J. Pre-Hr’g Statement at Ex. A at 10-11).

29 CFR 1910.268(c): The employer failed to provide training in the various precautions and safe practices described in this section and 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:

a) On or about 01/13/2020 in a wooded area near 208 Fisher Road, Andover, New York; an employee used a climbing belt to climb out on the support strand to retrieve a lashing machine that became stuck mid-strand. The employee slipped through the belt to his chest and was suffocated. Employees were not trained in the various methods to retrieve the lasher nor were they trained in the limitations of climbing belts or the hazards of misusing a climbing belt for horizontal access on an aerial wire.

29 CFR 1910.268(e): The employer failed to provide personal protective equipment, protective devices and special tools needed for the work of employees, and failed to ensure that such equipment was used by employees:

a) On or about 01/13/2020 in a wooded area near 208 Fisher Road, Andover, New York; an employee used a climbing belt to climb out on the support strand to retrieve a lashing machine that became stuck mid-strand. The employee slipped through the belt to his chest and was suffocated. A combination climbing/fall protection harness and appropriate rigging was not on site. Neither a ladder nor a sufficient number of layup sticks to reach the support strand were on site.

(Tr. 10-13, 76-77; J. Pre-Hr’g Statement at Ex. B at 12-13).

A three-day trial was conducted on April 26 through April 28, 2022.49 (Tr. 1).

The Secretary has met his burden in proving both items of the Citation. To demonstrate a prima facie serious violation of a safety standard under the Act, the Secretary must prove by a preponderance of the evidence that: (1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; and (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition. N. Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d Cir. 1996); Astra Pharm. Prods., Inc., No. 78-6247, 1981 WL 18810, at *4 (OSHRC, July 30, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). The Commission defines a preponderance of the evidence as enough to convince the trier of fact that the facts asserted are “more probably true than false.” Astra Pharm. Prods. Inc., 1981 WL 18810, at *5. Based on the record of this case, and as set forth below, the Secretary has established that ECE violated the cited standards because it failed to equip the Crew with the tools and PPE required by 29 C.F.R. § 1910.268(e) and did not ensure that the Crew received the proper training required by 29 C.F.R. § 1910.268(c).50

B. ECE Did Not Ensure that the Crew Received Proper Training Before Engaging in the Activities Covered by 29 C.F.R. § 1910.268(c).

OSHA issued Citation 1, Item 2 because ECE failed to provide the Crew with training relevant to the aerial line work they performed at the time of, and during the three months leading up to, the fatality. The evidence presented at the trial shows that ECE did not provide instructions to the Crew sufficient to prepare it to perform the work PM Becker assigned to it on January 13, 2020. Prior to sending the Crew out into the field, ECE failed to ensure that the Crew had received proper instructions and training on how to prevent the known hazards associated with performing routine midspan work at offroad worksites, such as the Incident Worksite, where a bucket truck is not an option for reaching working altitude of twenty or more feet.51 Training instructions should have included the use of personal climbing equipment and ladders, and ECE’s failure to provide such training and instructions exposed the Crew to serious hazards, as the death of Foreman AJ demonstrates.

Accordingly, Citation 1, Item 2, is affirmed.

The parties stipulated that “the work at issue in the citation”, lashing fiberoptic cable to an existing support strand, “constitutes ‘telecommunications field installations’ as defined by 29 C.F.R. § 1910.268(a).”52 (Legal Stip. No. 9). 29 C.F.R. § 1910.268(c) applies and ECE was required to comply with the standard’s training provision.

The evidence demonstrates that ECE did not comply with the training provision in OSHA’s telecommunications standard, 29 C.F.R. § 1910.268(c). The Secretary establishes non-compliance with a training standard by showing that an employer failed to provide potentially exposed employees with “the instructions that a reasonably prudent employer would have given under the same circumstances.” N & N Contractors, Inc., No. 96-0606, 2000 WL 665599, at *7 (OSHRC, May 18, 2000) aff’d, 255 F.3d 122 (4th Cir. 2001). Such circumstances include “the specific conditions [at the worksite], whether those conditions create a hazard, and whether the employer or its industry has recognized the hazard.” Compass Env’tl, Inc., 663 F.3d 1164, 1168 (10th Cir. 2011) (quoting W.G. Fairfield Co., No. 99-0344, 2000 WL 1535922, at *3 (OSHRC, October 16, 2000) aff’d, 285 F.3d 499 (6th Cir. 2022)). An employer’s instructions must be “specific enough to advise employees of the hazards associated with their work and the way to avoid them.” El Paso Crane & Rigging Co., No. 90-1106, 1993 WL 393508, at *8 n.7 (OSHRC, Sept. 30, 1993).

OSHA’s telecommunications standard aims to protect employees from the hazards associated with what, as ECE concedes, is an “inherently dangerous industry.” (Ex. 56 at 18). As set forth in the Preamble to the rule:

The foremost concern of these standards is to assure that telecommunications workers will take proper precautionary measures and have proper training with respect to them and will use appropriate protective equipment in carrying out their duties. The primary hazards to which these standards are directed relate to the prevention of injuries caused by electricity and falling.

38 Fed. Reg. 23038 (Aug. 28, 1973).

Accordingly, the standard includes a training provision that requires covered employers to “insure that employees do not engage in” covered work until they “have received proper training in the various precautions and safe practices required by” the standard. 29 C.F.R. § 1910.268(c). The standard requires that “employees be trained in the safe practices applicable to the telecommunications industry.” Marcus Cable Assocs., LLC., No. 02-0966, 2003 WL 1889141, at *5 (OSHRCALJ, April 14, 2003).

Such “precautions and safe practices” include how to prevent injuries from falls, or more specifically, how to safely access and perform work at “Other elevated locations” at working altitude. 38 Fed. Reg. 23038; 29 C.F.R. § 1910.268(n)(8). See Marcus Cable, 2003 WL 1889141, at *5 (affirming violation of section 1910.268(c) due to failure to certify training on “precautions necessary to prevent an employee from falling from the elevated bucket of the Ford F-450 bucket truck.”). Further, “where appropriate,” the standard requires that covered employers “shall include” instruction on certain enumerated topics, relevantly including “[p]rocedures to be followed in emergency situations.” 29 C.F.R. § 1910.268(c)(2). See also OSHA Interpretation Letter, Mar. 1, 2004 at 1 (Interp. Ltr.) (Recognizing that “the nature of telecommunications work presents a wide variety of work locations, schedules, and work crew configurations” and that such differences influence what training is appropriate).53 (Interp. Ltr. at 1, https://www.osha.gov/laws-regs/standardinterpretations/2004-03-01-0, last accessed by the Court on October 19, 2022; Sec’y Post Hr’g Br. at 26). The OSHA Interpretation Letter also states: “The requirement to provide training ‘where appropriate’ allows employers to evaluate their own worksites and job tasks and determine for themselves, using reason and prudence, what training is necessary.” (OSHA Interp. Ltr. at 1).

Accordingly, “the reasonably prudent employer concerned about the safety of its employees” needs to evaluate its worksites and job tasks to “detect potential dangers” and ensure that its crews receive “instructions sufficient to inform them about the conditions” that they will “foreseeably encounter[]….” during field work. Pressure Concrete Constr. Co., No. 90-2668, 1992 WL 381670, at *6-8 (OSHRC, Dec. 7, 1992). See also Interp. Ltr. at 1. This includes known geographic and environmental conditions relevant to the work, as well as the related routine problems and hazards. See also Hayward Baker, Inc., No. 12-0859, 2013 WL 2458533, at *5 (OSHRCALJ, Apr. 19, 2013) (training inadequate when it failed to address “how to deal with the routine problem of a stuck or difficult-to-load casing.”); Compass Env’tl, 663 F.3d at 1170 (“Nor does it seem unduly burdensome to require an employer to train its employees on a known severe hazard at a mobile construction worksite where unanticipated contingencies may arise.”). The “requisite instructions have to be detailed enough to take into account various contingencies.” and emergencies related thereto. Pressure Concrete, 1992 WL 381670, at *8; 29 C.F.R. § 1910.268(c)(2)-(3).

At the time of the Worksite Incident, the parties agree that the Crew was lashing cable offroad in an easement, when the lasher malfunctioned midspan at about twenty feet above ground. (Stip. Nos. 14, 17-22; Ex 64 ¶¶ 2-9). Both easement worksites and lasher malfunctions were commonplace throughout ECE’s Armstrong Project. 54 (Tr. 119, 461; Ex. 46 at 5 (Resp. to Interrog. Nos. 13-14)). Under these circumstances, a reasonably prudent employer concerned about the safety of its employees, needs to provide its aerial line crews with specific instructions about safe means and methods to reach and repair malfunctioning lashers in easements, without the benefit of a bucket truck. (Tr. 209). Such instructions would include “potential dangers” related to such work and be “detailed enough to take into account various contingencies,” as well as the procedures to follow during emergencies. Pressure Concrete, 1992 WL 381670, at *8; 29 C.F.R. § 1910.268(c)(2)(3).