UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4105
UTILITIES LINE CONSTRUCTION COMPANY, INC,
Respondent.

September 16, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners,

BARNAKO, Chairman:

A January 20, 1975 decision of Judge David J. Knight is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Knight affirmed citations charging Respondent with serious violations of 29 C.F.R. § 1926.950(b)(1)[1] and § 1926.950(c)(1).[2] He assessed penalties of $650 for each violation. For the reasons which follow, we affirm his decision insofar as it finds Respondent in violation of § 1926.950(b)(1), but reverse his finding of a violation of § 1926.950(c)(1).

The relevant facts are as follows. Respondent was engaged in upgrading a power line in Weston, Massachusetts for the Boston Edison Company. The work included stringing a ⅜ inch copperweld messenger wire along poles containing existing lines. On the day in question, a crew consisting of journeyman linemen, Martin and Waiswilos, was performing this work.

Prior to the start of work that day, Martin and Waiswilos drove along the road examining the poles they were to string. Waiswilos noticed that one of the poles had a line running to it which had not been there when they had previously worked on the pole several weeks before. The new line was attached to an aluminum shoe which was in turn attached to the pole by an eye bolt. The line dead-ended at the pole, and its final ten feet was temporarily coiled up. Upon noticing the line, Waiswilos asked whether Martin knew what it was, but received no answer. Because of the appearance of the line, Waiswilos assumed that it was not energized. In fact, however, the line was energized to 2400 volts. A determination that it was energized could have been made in several minutes by checking the manner in which the line was connected a short distance down the road. Additionally, a test on the line itself could have been made to determine whether it was energized. Waiswilos testified, however, that even if he was going to work on the pole containing the line, he would only have tested to determine whether it was energized if he was going to work on the line itself.

A number of other lines were also attached to the pole. Connected to crossarms at the top of the pole were three wires which ran parallel to the road. The new line, referred to as a primary lateral, ran across the road and was attached to the pole a short distance below the crossarms. Several feet below and parallel to the primary lateral ran a secondary line energized to 110–220 volts.[3]

In stringing the messenger wire over a pole, one member of the crew would approach the crossarm in an insulated bucket lifted by an extensible boom attached to a truck. He would throw a rope leader attached to the wire over the crossarm. The leader would then be pulled by the truck until the wire was taut. On each pole, this work required that a lineman be near the wires at the top of the pole for only a minute or two. It was relatively unsophisticated work for journeyman linemen to perform.

Work proceeded without incident in the morning with Waiswilos working in the insulated bucket, and Martin on the ground. In the afternoon, Martin began working in the bucket. While working at the pole containing the new primary lateral, Martin apparently encountered some difficulty when attempting to throw the rope leader over the crossarm. He stepped out of the bucket and stood with one foot on the secondary line. He then grabbed the primary lateral with his hand, whereupon he was electrocuted. After the accident, it was discovered that Martin was wearing only cotton sweat gloves, which had no insulating properties, and was not wearing rubber gloves. He had, however, been wearing rubber gloves earlier, while working in the bucket.

Respondent had about 35 crews at the time of the accident. Supervising these crews were five general foremen and two foremen. Each crew would normally be visited three times a day by a supervisor, who checked for safety violations as well as the progress of the work. A supervisor had the authority to stop a job if the employees were working unsafely. Additionally, on this particular project the worksites were checked for safety by Boston Edison supervisors. Each crew member was also required to report safety infractions committed by other members to the general foreman. Concerning this requirement, however, Waiswilos testified that he would discuss such a violation with the other employee rather than report it. Both Martin and Waiswilos were experienced linemen, and there is no evidence that either had, to Respondent’s knowledge, previously violated safety rules.

Respondent employed a full-time safety director, who visited each crew two or three times per year to discuss safety practices. Inspections of each crew at least twice a year were also conducted by safety engineers from Respondent’s workmen’s compensation insurance carrier. Hour long monthly safety meetings were held by each crew. When serious accidents occurred, special field letters concerning how similar occurrences could be prevented were circulated, and discussed with the crew by supervisors. Special safety bulletins concerning matters of general interest which the safety director thought significant were also issued. Occasionally, safety dinners with all supervisors in a geographical area would be held, and safety was among the subjects discussed at the annual meeting of all company supervisors. All linemen were trained in subjects such as pole-top rescue and cardio-pulmonary resuscitation.

Enforcement of safety rules was coordinated with Local 104 of the International Brotherhood of Electrical Workers. If union members violated safety rules, the union’s safety committee could recommend that they be suspended. Both the chairman of the union’s safety committee and the union’s business manager testified that Respondent had a good reputation for maintaining safe working conditions.

Respondent had a rule that required linemen to wear rubber gloves ‘ground-to-ground,’ that is from the time they left the ground to work on a pole until they returned. Concerning this rule, Waiswilos testified:

Q. Now, with regards to the rubber glove rule, were efforts made on the part of the company, to your knowledge, to see to it that employees were aware of the rubber glove rule?

A. Yes, that was so. There was a constant reminder of wearing rubber gloves.

Q. Does your general foreman remind you of that?

A. Yes.

Q. Has the general foreman ever told you that if either you or Mr. Martin were found up on the pole without rubber gloves that he would suspend you?

A. That’s right.

Q. Did you tell that to Martin?

A. That was told to everyone in the whole barn constantly.

Officer Bentley, a police officer of the Town of Weston, who directed traffic in locations where Respondent’s crews were working, and who was working with the crew at the time of the accident, testified.

Q. Whenever they went up in the air they wore their gloves, all the time they were in the air?

A. Yes sir. Even working on the ground they wore them.

The business manager of Local 104 of the I.B.E.W. testified as follows:

Q. When Boston Edison watches the work of the employees of its contractors, their performance, if it discovers any of the contractor’s employees not wearing rubber gloves when they are in the air, will they immediately stop the crew from working and shut the job?

A. Not necessarily. They will report to the general foreman what they have seen.

Q. And what will they direct them to do?

A. They’ll direct them to do nothing, because they don’t have the power to direct them, but they will check it, and if the man is without rubber gloves, the man will be suspended.

Q. Right then and there?

A. Yes.

Q. And this has happened?

A. Yes.

Q. And the men know about it and talk about it.

A. Right.

Q. And you tell them constantly, to wear rubber gloves when you are up there?

A. Right.

Additionally, the manager of Respondent’s operations in the Boston area testified that he had personally suspended employees who had violated the rubber glove rule.

In addition to the rubber glove rule, Respondent had two other work rules which were violated at the time of the accident. One prohibited employees from stepping out of insulated buckets, and the other required unknown lines to be considered energized. There was also evidence that it was considered poor safety practice to step on secondary lines, although there is no indication that Respondent had a rule prohibiting this practice.[4] The record shows that, on several previous occasions on this particular job, Waiswilos had observed Martin step onto secondary lines, and had ‘chewed him out’ about it, but had not reported the incidents to company officials.

The record establishes noncompliance with the two cited standards. Section 1926.950(c)(1) was violated when Martin contacted the 2400 volt primary lateral without wearing insulating gloves and without otherwise being insulated from the line. The violation of § 1926.950(b)(1) occurred when the crew began work in the vicinity of the primary lateral without determining whether the line was energized. The latter standard explicitly requires that one of the conditions to be determined ‘before starting work’ is ‘energized lines.’

Respondent argues, however, that it is not responsible for these instances of noncompliance with the standards because they were committed by an employee, in violation of company safety rules, in such a manner as to have been unforseeable by Respondent. Respondent frames the issue as follows:

The question present in this case . . . is whether respondent has taken reasonable precautions to prevent its employees from being exposed to the hazards sought to be avoided . . . In making this determination, the employer’s instructions to his employees, the training which they have received and their skills should all be taken into account. Inquiry should be made into the question of whether the employer knew or reasonably could have known that the employees involved would disregard the instructions and training they had received and still commit the violation.

As Respondent states, when a violation of a standard is committed by an employee, whether the employer is responsible depends on whether the employee received adequate training and instructions designed to prevent the violation. Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (7th Cir. 1975). The employer must also establish and enforce work rules requiring compliance with the standard. B-G Maintenance Management, Inc., Docket No. 4713 (June 1, 1976); The Weatherhead Co., Docket No. 8862 (June 10, 1976); Engineers Construction, Inc., 20 OSAHRC 348, BNA 3 OSHC 1537, CCH OSHD para. 20,012 (1975). Only if the employer takes such steps can it be said that a violation which occurs in spite of them is unpreventable.

In this case, there is no evidence that Respondent instructed its employees to determine whether lines were energized before working in proximity to them. Instead, the record indicates that Respondent relied on its rule that unknown lines should be considered to be energized.[5] Such a rule however, cannot be considered a substitute for the requirement of the standard. Indeed, the standards governing work on power lines contain a separate requirement that unknown lines be considered energized until determined otherwise. See 29 C.F.R. § 1926.950(b)(2) and 954(a). As this case shows, the assumption that a line is energized is not an adequate substitute for the actual knowledge of whether it is or is not energized. We therefore hold that the Judge properly found Respondent in violation of § 1926.950(b)(1).

Complainant argues that Respondent’s safety program was also inadequate with respect to the alleged violation of § 1926.950(c)(1). He contends that Respondent did not take sufficient precautions to prevent Martin from standing on secondary lines and from stepping out of the insulated bucket. In particular, he argues that Waiswilos’ failure to report prior instances of such occurrences establishes a breakdown in Respondent’s enforcement of its rules. The Judge agreed, finding that Respondent could have prevented the accident by requiring strict adherence to the requirement that crew members should report safety infractions committed by their colleagues.

There would, however, have been no violation of the standard when Martin stepped out of the bucket and stood on the secondary if he had been wearing his rubber gloves. Since the secondary line was energized to less than 2.1 kilovolts, the standard does not provide any minimum distance that must be maintained from it, and does not prohibit contact with it. While contacting the secondary may well have been an unsafe practice, no violation of the standard can be predicated on it.

Similarly, had Martin worn his rubber gloves when he stepped out of the insulated bucket, the standard would not have been violated. The standard explicitly provides that ‘gloves . . . shall be considered insulation of the employee from the energized part.’ By requiring linemen both to wear rubber gloves and to stay in insulated buckets, Respondent has established partially redundant safety rules. Either rule, had it been followed, would have prevented the violation under the circumstances of this case.[6] Thus, even assuming that Respondent did not adequately enforce its rule against stepping out of insulated buckets,[7] if its rule requiring the wearing of rubber gloves was adequately enforced, it did not violate the standard.

The record reveals that Respondent’s rubber glove rule was repeatedly and effectively communicated to employees, that violations of the rule were rare, that adequate means to discover such violations were taken, and that when violations were discovered, the rule was enforced through disciplinary measures. Under these circumstances, Respondent could not have prevented the violation, and can therefore not be held responsible. Horne Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir., Feb. 26, 1976); Engineers Construction, Inc., supra.

In assessing a penalty for the violation of § 1926.950(b)(1), the Judge properly considered Respondent’s size, good faith, and prior history, along with the gravity of the violation. We therefore affirm his assessment.

Accordingly, the citation for violation of 29 C.F.R. § 1926.950(b)(1) and the corresponding proposed penalty are affirmed. The citation for violation of 29 C.F.R. § 1926.950(c)(1) and its proposed penalty are vacated. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: SEP 16, 1976

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the lead opinion insofar as it vacates the citation alleging noncompliance with 29 C.F.R. § 1926.950(c)(1). I do not agree, however, which my colleagues’ failure to recognize that the law places the burden on complainant to establish that respondent possessed the requisite degree of knowledge of the alleged violation. That failure has resulted in the erroneous affirmance of the 29 C.F.R. § 1926.950(b)(1) charge.

It is now well-settled that knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. This has been acknowledged by three Circuit Courts.[8] It was also announced as the proper rule of law by this Commission almost four years ago in a decision[9] which has not been overruled by any ‘clearly stated [change] accompanied by a statement of the reasoning behind the change.’[10] Therefore, the complainant’s case must establish that respondent knew or, with the exercise of reasonable diligence, should have known of the existence of the conditions or practice upon which the alleged violation is based.[11] Footnote 5 of the majority opinion, in effect, applies the very reverse of that rule by requiring employer’s to prove a lack of knowledge.

My colleagues’ summarization of the evidence as to the § 1926.950(c)(1) charge is accurate and clearly shows that the evidence is insufficient to establish actual or constructive knowledge of respondent. They err, however, in stating that there was no evidence to indicate that respondent instructed its employees to determine whether lines were energized before working near them. In fact, complainant conceded the opposite when he stated, in his brief to the Judge after trial:

Indeed, the normal procedure was to check to see if a line was energized. [TR 91]. Again, this clearly was not done in the instant case.[12]

It was reasonable for respondent to expect experienced journeymen to adhere to an acknowledged work policy which required that lines be checked before beginning work thereon. The testimony of two union officials shows that a journeyman ‘is the ultimate as far as a lineman goes’ and that they are extremely qualified, completely skilled employees. Under these circumstances, the evidence does not establish that respondent should have known of the failure of its employees to ascertain that the new line was energized. Furthermore, it is clear that respondent had no actual knowledge of this situation. Accordingly, the § 1926.950(b)(1) charge should also be vacated.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4105
UTILITIES LINE CONSTRUCTION COMPANY, INC,
Respondent.

January 20, 1975

DECISION & ORDER

Appearances:

For the Complainant: Albert H. Ross, Regional Solicitor U.S. Department of Labor Boston, Massachusetts by Willis Goldsmith and Paul J. Katz, Esqs.

For the Respondent: Anthony J. Obadal, Esq. Hunton, Williams, Gay & Gibson Washington, D.C.

For Employees: None

On August 6, 1973, Utilities Line Construction Company, Inc., of Jenkintown, Pennsylvania (Respondent), contested a citation issued on July 16, 1973, by the Occupational Safety and Health Administration of the U.S. Department of Labor (Complainant) which alleges two serious violations of safety standards promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, et seq.,[13] and assesses a proposed penalty of $650 for each alleged violation. Immediate abatement of the alleged violations is required by the citation.

The issuance of the citation resulted from an inspection by Complainant on June 25, 1973, of Respondent’s worksite located at pole 30/53 on the corner of Summer Street and Loring Road in Weston, Massachusetts. It alleges that:

(1) Respondent failed to determine existing conditions before starting work in violation of the standard at 29 C.F.R. § 1926.950(b)(1);[14] and

(2) It failed to assure that its employee was insulated or guarded by protective equipment before approaching exposed energized parts in violation of the standard at 29 C.F.R. § 1926.950(c)(1).[15]

Complaint and answer were filed, the former alleging and the latter admitting the necessary jurisdictional facts. The matter came on for hearing on January 9 and 10, 1974, with both sides represented by counsel and no appearance by or for employees[16] (Transcript, Tr. 3). Post-hearing requests and briefs were filed by April 4, 1974.

The Evidence:

On June 21, 1973, at approximately 1:15 p.m., Respondent’s lineman, Irenne Martin, stepped out of the bucket which had lifted him to a point near the top of pole 30/53 onto the tri-plex secondary lateral wire with his left foot; and with his right hand, he grabbed the primary lateral which was level with (and no more than a foot from) his head. The former wire carried 110 volts and the latter 2,400 volts. Within three seconds, his left foot began to spark and he slumped over (Stipulation, Tr. 3–7, and Officer Bentley, Tr. 10–12). He was pronounced dead on arrival at the Waltham, Massachusetts, Hospital at 1:30 p.m. The parties stipulated that electrocution was the cause of death (Tr. 127).

At that time, Irenne Martin was one of a crew of three (two linemen and a driver) engaged in stringing a 3/8 inch copperweld messenger wire on the poles along Summer Street (Tr. 47). The whole area was in the process of being converted to increase the power available from 4 to 13.8 kilovolts (Tr. 69–74 and Exhibit R–1). That morning, the lead lineman of this crew, Anthony A. Waiswilos, Jr., rode the bucket, throwing the wire over the arms of the pole. His co-worker on the ground would attach the rope to the truck, and the line would be dragged to the next pole where the process would be repeated (Tr. 86–87, 93). One thousand feet was strung that way that morning. Mr. Martin was to ride the bucket in the afternoon; and once in, would stay in the bucket from pole to pole (Tr. 79). This is apprentices’ work, not the first-class linemen’s; it was ‘dumb work’ (Tr. 87). The line can be thrown easily wearing the protective gloves (Tr. 97), a leather glove worn over a 10,000-volt rubber glove over a cotton sweat glove (Tr. 51). The bucket itself was insulated against 30,000 volts (Tr. 81).

Officer Bentley of the Weston Police Department on traffic detail [the flag man (Tr. 23–24)] at the scene does not remember whether Irenne Martin was wearing protective gloves when he grabbed that 2,400-volt primary lateral (Tr. 8 and 11), although he believes—without being positive—that the gloves were not being worn at the time; there were no gloves on the ground where Mr. Martin fell from the pole nor on his hands (Exhibit C–1, page 5). He could have taken them off while in the bucket (Tr. 32–33). At the hospital, it was reported that the deceased was wearing white cotton sweat gloves (Tr. 27, 30–31). The lines where Mr. Martin had been working were not sleeved (Tr. 11–12).

Mr. Waiswilos testified that, on that day, Mr. Martin had been wearing his brown rubber gloves and ‘As far as I can remember, he was wearing his gloves’ when he went up in the bucket just prior to his accident (Tr. 51). However, Mr. Waiswilos told the Complainant’s Compliance Officer who conducted an investigation four days after the accident that ‘I. Martin stepped from bucket truck with no rubber gloves on to triplex cable to throw hand line over X arm’ (Tr. 53 and Exhibit C–2). But he did not actually see Mr. Martin without the gloves at the time of the accident nor did he witness him getting out of the bucket (Tr. 82). That Martin was not wearing his gloves and had stepped out of the bucket were his conclusions based on the facts that Martin had died, had been out of the bucket and had no gloves on when he fell from the pole (Tr. 82). He did see Mr. Martin out on the wire and concluded that he was without the gloves (Tr. 85), but he did not see him taking them off (Tr. 83). At the most, it took a minute and a half from the time Mr. Martin went up in the bucket to the point when Mr. Waiswilos tried to bring him down (Tr. 241). There was no supervisor present at the time of the accident (Tr. 90).

On the day of the accident, neither lineman knew whether the primary lateral, which Martin had grabbed, was energized (Tr. 59–60). Mr. Waiswilos didn’t think it was (Exhibit C–1, page 5). That wire had not been on the pole some three weeks before when the men were there last (Tr. 58). In the morning of the day of Mr. Martin’s death, he and Mr. Waiswilos rode by the pole looking over the work to be done that day, and the latter remarked on seeing the primary lateral, ‘What the hell is that?’ Mr. Martin didn’t reply (Tr. 59–60 and 76–77). No check on the status or condition of the wire was made because of its make-up: 10 to 12 feet coiled up as a temporary line which dead-ended there into an aluminum shoe (Tr. 60). This line extended from the pole across Summer Street and down Loring Road (Tr. 76). It would have taken but a few minutes to check the line out some five poles up the street (Tr. 60–61). Its appearance did not tell whether it was energized (Tr. 91). However, Mr. Waiswilos would have treated this unknown line as ‘hot’ or energized, and he believes that Mr. Martin would also have done so (Tr. 86). The map or schematic drawing of the conversion of the area (Exhibit R–1) was in the glove compartment of the vehicle in which they were riding that day (Tr. 77). The ‘in-service date’ for the increased capacity of the system is marked on this map as ‘Nov. 1, 1973,’ and this map did not indicate whether the primary lateral was energized (Tr. 91).

Anthony Waiswilos, as the lead lineman on that day (Tr. 37), programs and decides how the job is to be done in consultation with his partner (Tr. 41). He receives more money in this position [.50 to .55 more per hour (Tr. 289)] to make sure the proper stock is on hand to do the work, to make out the unit sheets (i.e., the work accomplished during the day), and generally to keep the job moving (Tr. 41–43).

The men on the crew work together (Tr. 44) and the lead lineman doesn’t assign any job (Tr. 47); nor is it his function to hire, fire or discipline any other employee (Tr. 78). But each member of the crew has a duty to the other to see to it that each works safely and helps the other out (Tr. 66–67). But, Mr. Waiswilos was not watching Mr. Martin every minute, and he wouldn’t look for any particular thing until after there’s some kind of problem (Tr. 83). And he wouldn’t have reported infractions to the company; the men would talk about it themselves (Tr. 78–79). Mr. Waiswilos wouldn’t work with a problem crew member (Tr. 79). Mr. Loughman, Business Manager of these men’s union whose testimony is detailed below, testified that every crew member is responsible for reporting the breaking of any safety rule to the general foreman (Tr. 230).

Charles Long, Respondent’s manager (Tr. 277), testified that about 15 crews were working on this Boston Edison project with two general foremen and one roving foreman. Additionally, one foreman was assigned to this project (Tr. 279). The general foreman is totally responsible for the people in all areas; he is the supervisor (Tr. 278), and he would oversee an operation as large as the project underway (Tr. 279), being at each work site at least three times a day (Tr. 280). Boston Edison, at the time, had four supervisors and six construction inspectors (Tr. 280). They could put a stop to the work for any condition and contact the Respondent’s general foreman who would take the necessary action (Tr. 281).

According to Mr. Long, a three-man crew would not have a foreman assigned to it (Tr. 291). One would be assigned to a ‘bull crew,’ a combination of two or more crews doing critical work (Tr. 279, 290–291). Mr. Waiswilos, on June 21, 1973, was not a foreman but a lead lineman and, as such, could not prevent a crew member from going up a pole (Tr. 291–292).

James A. Loughman, the Business Manager of Local 104, International Brotherhood of Electrical Workers, whose jurisdiction extends to areas in four New England States (Tr. 217–218), who is a journeyman lineman and has been in the business for 23 years, testified that a journeyman lineman is an extremely qualified, completely skilled employee (Tr. 219). In response to a question of whether a supervisor is required whenever a journeyman approaches a hot line based on that man’s skill, he stated that it is not going on right now (Tr. 223–224).

The lead lineman on a crew may not hire, fire or discipline another employee, and each crewman (except an apprentice) oversees the other (Tr. 220). The lead lineman is not part of management (Tr. 221), and his duties are as Mr. Waiswilos described.

According to this witness, there is no need for the presence of a supervisor whenever a man is in the air near energized wires; nor was it necessary to sleeve the lines on pole 30/53 because there was enough clearance for the bucket (Tr. 224–225). There is a union rule requiring the employees to wear their gloves ground-to-ground (from the time they leave the ground and go up the pole until their return), and a man will be penalized for an infraction of this rule (Tr. 225). In Mr. Loughman’s memory, he has suspended man twice in five years for violating this rule (Tr. 228–229).

Irenne Martin was a member of Local 104 (Tr. 222), and Mr. Loughman is familiar with his background and reputation (Tr. 221). He had been tested by the Local (Tr. 222–223) and was regarded as a good and capable lineman serving at times as the crew’s head lineman (Tr. 222). Anthony Waiswilos is also known in the field as a skilled journeyman and has served as the general foreman.

Commenting on Officer Bentley’s report that Irenne Martin had a habit of standing on secondary wires (Tr. 20), that he did so on the morning of the day of his death[17] (Tr. 22 and 25), that Anthony Waiswilos told him not to do it and had told the Officer that Martin had this habit (Tr. 30), and that Waiswilos had ‘chewed him out’ pretty good after he had done it for a second time (Tr. 31, 33–34), Mr. Loughman said that although anyone on a crew has the responsibility to report a violation (Tr. 230), he doubts that this type of infraction would be reported because it is not ‘horrendous’ (Tr. 231).

Mr. Loughman testified that in his opinion the Respondent did not violate the Occupational Safety and Health Act (Tr. 236–238).

Thomas J. Greeley, a member of Local 104’s Executive Board and Chairman of its Safety Committee and who has been a lineman for 23 years, investigated the accident four days later on June 25, 1973 (Tr. 191–193). No recommendations were made to the Respondent that anyone be disciplined as a result of the accident. There was no cause found for such a recommendation. The lead lineman (Waiswilos) had no control over Martin’s actions. Nobody knows exactly what happened; it’s all conjecture and nobody could be held responsible (Tr. 193).

He testified that the journeyman is the ultimate as far as a lineman goes (Tr. 194) and does not require one-to-one supervision (Tr. 195–196). In the trade, the journeyman would look at every unknown line as energized; and he knows of the ground-to-ground rule on the wearing of rubber gloves; and the rules against stepping out of the bucket or onto any conductor (Tr. 195). He would have done the job the same way as was being done (Tr. 198), but he would have disciplined a lineman with time off for stepping out of the bucket onto secondary lines twice (Tr. 209). In his opinion, if a man works unsafely, he should definitely be disciplined (Tr. 210). But the lead lineman has no power to discipline (Tr. 216).

Respondent’s safety program was described by its Safety Director. James J. Woods, Jr. (Tr. 245). Respondent has been a member of the National Safety Council for 18 years and retains a full-time Safety Director (Tr. 248). He visits all crews in all states where work is being done at least two or three times a year and more often in troubled areas (Tr. 248–249). Its insurance carrier inspects all crews twice a year and checks monthly with supervisors and managers and four times a year with the general foremen (Tr. 249).

The Company’s safety manual, covering 102 pages, was completely revised in 1973, and that contains rules for every type of work (Tr. 249). All reports on serious accidents are posted, and letters are sent to all crews to let all men know what can happen to the victims so it shouldn’t happen again (Tr. 250–251).

A safety news bulletin and field letters are sent out periodically on safety subjects (Tr. 251). One-hour, monthly tailboard discussions are held on 37 different safety subjects taken one by one (Tr. 252). Safety articles appear in the company magazine (Tr. 253). Annual two-day meetings are held which include safety topics attended by the general foreman on up (Tr. 253–254).

The Safety Director participates with union committees in training apprentices and generally works closely with the unions and their safety people (Tr. 254).

In Mr. Woods’ report of this accident, he referred to Mr. Tony Waiswilos as the foreman (Tr. 264–265), but this did not describe his function but only differentiated him from the rest of the members of the crew (Tr. 269–270). Mr. Waiswilos told him he thought the primary lateral was dead because of its appearance (Tr. 270) and that Mart in was not wearing his gloves at the time of the accident (Tr. 271).

James L. Dolan, Complainant’s Compliance Officer, recommended the penalties for each alleged violation based on his investigation made on June 25, 1974, four days after the accident (Tr. 99 and 104). The gravity of the violation was the primary factor, and he assessed an unadjusted penalty of $1,000 for each. To this he then applied reduction of:

10 percent for good faith

5 percent for size, and

20 percent for history

which resulted in final penalties of $650 for each alleged violation (Tr. 104–106 and 126). These discounts are the most allowable except for ‘good faith’ which could bring a 20 percent allowance. However, because the Respondent’s safety program, which he acknowledged was enforced (Tr. 121), was not implemented on the day of the accident (Tr. 121, 124–125), he allowed only a 10 percent reduction. Respondent’s safety program affects the good faith factor (Tr. 124–125).

The Parties’ Proposed Findings of Fact, Conclusions of Law and Contentions on Brief

At the outset of the hearing, the parties agreed that there is no question concerning the existence of the necessary jurisdictional facts, namely, that Respondent is an employer having employees and who affects commerce as that is contemplated by the Act (Complaint, para. I, Answer, para. II, and 29 U.S.C. §§ 652(3) and (5), Tr. 2).

With reference of the alleged violation of 29 C.F.R. § 1926.950(b)(1) (requiring that existing conditions be determined before work starts), Complainant points to the facts that neither lineman on June 21, 1973, knew whether the primary lateral was energized and believed that it was not. No check was made although it would have taken only a few minutes.

With regard to the second alleged violation [29 C.F.R. §§ 1926.950(c)(1), permitting an employee to approach a conductive object without insulation or guarding], Complainant supports this with two proposed findings: (1) the conductive objects approached carried 2400 volts and between 115–230 volts at pole 30/53 on June 21, 1973, and Respondent’s employee was allowed to come closer to the former than permitted by Table V–1 appended to the standard cited; and (2) that in making this approach, Respondent ‘failed to assure’ [Proposed finding (11)] that the employee was insulated or guarded by gloves or had sleeved the energized parts.

The two alleged violations taken together, resulted in the death by electrocution of Irenne Martin [Proposed findings (12)].

As to both, Complainant argues that the facts surrounding the alleged violations and Respondent’s history, size and good faith support the individual penalties of $650 and that the abatement periods to effect the cures are reasonable and sufficient.

Complainant’s conclusion is that both citations should be affirmed in their entirety.

Respondent contends that the question presented in this proceeding “ . . . is whether respondent has taken reasonable precautions to prevent its employees from being exposed to the hazards sought to be avoided.” (Respondent’s Brief, p. 20).

In fashioning the answer to this, Respondent uses: (1) the employer’s instructions to its employees; (2) their training; and (3) the skill of the journeyman lineman (Respondent’s Brief, p. 20). Taking these three elements into account, Respondent contends that the actions of the employees should not be attributable to the employer (Respondent’s Brief, p. 30) and that it was proper for Respondent to rely upon the experience and skills of the journeyman. Respondent did everything which a prudent man could be reasonably expected to be (Respondent’s Brief, p. 32).

Regarding the first alleged violation described as the failure to inspect existing conditions [29 C.F.R. § 1926.950(b)(1)], Respondent points to the facts that: the men, on June 21, 1973, rode down Summer Street looking at the lines and poles; they saw the new lateral from Loring Road; while they were apparently unaware of the reason for its being there, the map of the work to be done showed that this line was one being installed as part of the area’s conversion; and since it was not necessary to work on this line or to come closer to it than is allowed by the required clearances, there was no need to check the line out further. In any event, as an unknown line, it should have been treated as hot which Martin failed to do. The fact is that Martin violated a well-established work rule which the employer could not have reasonably foreseen (Respondent’s Brief, p. 31).

As to the second alleged violation described as Respondent’s failure to assure that employees are protected [29 C.F.R. § 1926.950(c)(1)], Respondent relies on the facts that: the employer supplied the rubber gloves; they were kept in the bucket and worn before the start of any job; the rule requiring their use was enforced by Respondent, its Union, and Boston Edison and men have been suspended for violations; no one testified that they saw Martin without them on; and that Martin’s actions, characterized as spontaneous, cannot become the Respondent’s responsibility (Respondent’s Brief, p. 29–30).

Respondent attributes the accidental electrocution of Martin to his violation of at least four well-established work rules. He

(1) Apparently failed to wear rubber gloves;

(2) Stepped out of the insulated bucket;

(3) Grabbed hold of an unknown line; and

(4) Stepped on a secondary (Respondent’s Brief, p. 32).

Respondent concludes that it properly relied on the experience and skills of its men, that it did all it could reasonably be expected to do, that this was the conclusion of Local 104, that it was without fault, and the citations and penalties should be vacated.

Findings of Fact, Discussion and Conclusions

On the record as a whole including the demeanor of those persons giving testimony, I find:

(1) Based on Respondent’s Answer to the Complaint and agreement at the hearing, Utilities Line Construction Company, Inc., engages about 60 employees who regularly work with goods moved in interstate commerce in its power-line transmission and distribution business;

(2) On June 21, 1973, one of Respondent’s three-man crews consisting of two journeymen linemen and a truck driver was engaged in the stringing of a 3/8’ copperweld messenger cable along the poles on Summer Street, Weston, Massachusetts.

(3) The activity was a part of the contract with Boston Edison to convert the area and increase the capacity of its power system from 4 kilovolts to 13.8 kilovolts and it was to be completed, or put in service, on November 1, 1973.

(4) This crew was under the supervision of a general foreman but the lead lineman of the crew, Anthony A. Waiswilos, Jr., had no supervisory authority and could not in any way discipline or prevent a member of the crew from working.

(5) On the morning of June 21, 1973, while inspecting the poles on which the work was to be done, the linemen saw a line on pole 30/53 located at the intersection of Summer Street and Loring Road which had not been there three weeks prior when these men had last been at this pole.

(6) This line was an existing condition on pole 30/53 on June 21, 1973.

(7) Neither lineman knew the status of this line, whether it was energized or not, and the map, which they carried in their vehicle but apparently did not refer to at that time, would not reveal whether on June 21, 1973, the line was energized.

(8) Because of the appearance of the line as a temporary wire, 10 or 12 feet coiled up and dead-ending in an aluminum shoe, the men thought this line was not energized, and no check to determine whether the line was energized was made by the lineman although it would have taken only a few minutes.

(9) Under these circumstances, in the early afternoon of that day, one of the linemen, Irenne Martin, went up alongside pole 30/53 in a bucket from the truck to throw the messenger cable over the pole’s cross-arms, and his head came within a foot of the unknown line, that—very shortly thereafter—he stepped from the bucket onto a secondary line carrying 110 volts and grabbed the unknown line and was electrocuted almost immediately.

(10) The unknown line is a primary lateral and carries 2400 volts of electricity, and it was not sleeved or covered with a protective material on June 21, 1973.

(11) His partner, Lineman Waiswilos, was on the ground and would have received the messenger after it was placed over the pole’s cross-arms and attach it to the truck to be pulled to the next pole.

(12) At the time Lineman Martin grabbed the primary lateral, he was not wearing his rubber insulated gloves. For this finding, I rely on the circumstances testified to by the flagman, Officer Bentley, at the scene. Lineman Martin did not have the gloves on after he fell from the pole; they were not on the ground around him; Lineman Waiswilos’ immediate impression, having seen Mr. Martin standing on the secondary tri-plex, was that the deceased had not been wearing his gloves and that he stepped out of the bucket without the gloves.

(13) At the time of the accident, there was no person with supervisory authority at pole 30/53.

(14) Respondent’s safety program appears to be comprehensive, including the training and enforcement of the safety rules, and in which the Union, in this case Local 104 of the International Brotherhood of Electrical Workers, has an active role training and testing the linemen and enforcing the safety rules.)

(15) Lineman Martin, in approaching and taking hold of an unknown line, violated two established work rules: he did so without his insulated gloves, and he treated an unknown line as de-energized. He also violated the known rules against stepping out of the bucket onto the secondary tri-plex line.

(16) Lineman Martin was known to his partner to have stepped out of the bucket onto other lines on at least two other occasions even though the exact times of these occurrences are unknown.

(17) It is recognized that each lineman on a crew has a duty to watch over the other and has a responsibility to report infractions of the safety rules to his supervisor as testified to by Lineman Waiswilos and Local 104’s Business Manager and that this is required by the danger inherent in the daily life of the journeyman.

(18) There is no evidence that this duty and responsibility are enforced either by the Respondent or the Union, but it is left to the linemen to decide what is going to be reported when they work without the direct supervision of a foreman.

(19) The inference to be drawn from the requirement to watch over and report is that such a procedure is necessary to prevent the lineman from becoming lax in his approach and attitude toward his job.

(20) Respondent, in charge of the entire conversion project, must have known of the existence of the primary lateral on pole 30/53 on June 21, 1973, but gave no notice of its condition to its employees. Neither lineman knew that the primary lateral was energized and, in fact, believed it not to be.

(21) By requiring strict adherence by each lineman to his responsibility to oversee the other and report violations—especially when they work unattended by a supervisor, or when the linemen are performing a task which does not appear to warrant close supervision—the Respondent could have known of the violations committed by Lineman Martin.

(22) The penalties proposed appropriately account for Respondent’s history, size and good faith and the gravity of the alleged violations.

(23) No question is raised about the adequacy of the period to abate the alleged violations and that these should be abated immediately is reasonable.

These findings lead me to conclude that the violations and penalties must stand. Existing conditions—namely, the sudden appearance of the primary lateral—on pole 30/53 on June 21, 1973, were not known to the linemen despite the requirement of 29 C.F.R. § 1926.950(b)(1). It doesn’t matter how close a man was to come to any wire on the pole, the standard requires that he know that is there before he goes up.

In this case, it is acknowledged that neither man knew anything about the primary lateral at all. They had never seen it before, and their visual inspection told them nothing and they thought it was dead. Respondent did not make them aware that it was live, and the schematic which they had was of no help. There is no evidence that Respondent imposed any requirement that the men check out all unknown lines before beginning the work.

The common-sense rule to stay away from unknown lines or test them with a pliers or the like is not compliance with this standard which absolutely requires that all existing conditions be known. This is a positive duty imposed on any Respondent especially where the men may be misled by the appearance of the line into thinking that it is dead. Because of the line’s looks, the men made no check on it, although the check would have taken only a few minutes. Regardless of what happened on June 21, 1973, the standard requires that

(1) Existing conditions shall be determined before starting work, by an inspection or a test. Such conditions shall include, but not be limited to, energized lines . . ..

That requirement was not met.

With regard to the second violation, 29 C.F.R. § 1926.950(c)(1) requires that

No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V–1,[18]unless

(1) the employee is insulated or guarded, (2) the energized part is insulated or guarded or (3) the employee is isolated, insulated or guarded from any other conductive object, as during live-line, bare-handed work.

Irenne Martin left all of his insulation, guarding and isolation behind when he stepped out of the bucket without his rubber gloves and grabbed the 2400 volt line standing on another conductive object which was carrying 115 volts.

The cited standard is versed in terms of ‘No employee shall be permitted . . . unless . . ..’ The word permit is defined to include: liberty or leave; to allow; to suffer; or to tolerate, Gregory v. Marks, 10 Fed. Cas. 1194, 1198.

The lineman who violated the rules was known to his partner to treat the safety rules less than impeccably. Apparently, this was not made known to Respondent although each lineman has a duty to report any infraction of the rules. This duty which is, in itself, an acknowledged rule is not enforced either by Respondent or Local 104. Rather, it is left to the men to decide what to report.

In this case, this crew was largely left to its own, with no safety supervisor, performing a task admittedly requiring less than the Journeyman’s full skill and capacity. No member of that crew had the authority to stop the job on his own. It is just such a situation that Respondent should have enforced the rule that the foreman—somewhere else in the area—be notified when a safety rule is broken. But there is no evidence of such a reporting requirement. Rather, Respondent appears to have acquiesced in allowing the linemen to run the job as they see fit. It relies on premise that Martin’s acts constituted isolated incidences which it could not in any way have prevented.

But if Respondent had been diligent in enforcing the acknowledged rules (Respondent’s Brief, p. 10) that each man must oversee the other and report the violations, it would have known that a lineman had stepped out of a bucket in violation of that rule and more than once.

Thus, this is not a situation where an experienced and capable man is off on his own and breaks a known, established and enforced rule with the employer completely unable to prevent the violation. cf., Secretary v. Clearwater Power Co., Docket No. 3458, 7 OSAHRC 707, Secretary v. Hansen Brothers Logging, 1 OSAHRC 869, and Secretary v. L. E. Myers Co., Docket No. 2532 (on review on another issue). This lack of enforcement (1) allowed the practice to continue and (2) permitted the men, in those circumstances, to work without proper supervisory personnel which then led to the violation charged.

This is tantamount to a permission by Respondent allowing its employee to approach a conductive object closer than should have been and without the required safeguards.

I conclude, then, that the Respondent is subject to the Act and did violate the standards cited and that the penalties and abatement periods set are reasonable. In reaching these conclusions, I have considered the parties’ proposed findings of fact and conclusions of law along with their detailed and well-written briefs. To the extent noted above, the findings and conclusions are adopted; otherwise, they are rejected as not supported by fact or law.

Order:

It is ordered that the citations issued on July 16, 1973, to Utilities Line Construction Company, Inc., alleging serious violations of

(1) 29 C.F.R. § 1926.950(b)(1) together with the proposed penalty of $650; and

(2) 29 C.F.R. § 1926.950(c)(1) together with the proposed penalty of $650

are affirmed.

DAVID J. KNIGHT

Judge, OSHRC

Dated: January 20, 1975

Boston, Massachusetts

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[1] This standard provides:

Existing conditions shall be determined before starting work, by an inspection or a test. Such conditions shall include, but not be limited to, energized lines and equipment, conditions of poles, and the location of circuits and equipment, including power and communication lines, CATV and fire alarm circuits.

[2] This standard provides:

(1) No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V–1, unless:

(i) The employee is insulated or guarded from the energized part (gloves or gloves with a sleeves rated for the voltage involved shall be considered insulation of the employee from the energized part), or

(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or

(iii) The employee is isolated, insulated, or guarded from any other conductive object(s), as during live-line bare-hand work.

Table V–1, to which the standard refers, provides for a minimum distance of two feet when the voltage is 2.1 to 15 kilovolts. Higher minimum distances are specified for higher voltages. No minimum distance is provided when the voltage is less than 2.1 kilovolts.

[3] The secondary consisted of three parallel wires loosely twisted together. It was used to supply electric power to a private residence.

[4] The union safety chairman testified that it is not uncommon to accidentally step on lines when climbing or working on poles.

[5] Respondent argues that Complainant failed to prove that it did not have a rule requiring a determination of whether lines were energized. The argument is misplaced. The burden of showing that it had and enforced a rule aimed at achieving compliance with the standard lies with the Respondent. B-G Maintenance Management, Inc., supra. In any event, the record shows that Martin and Waiswilos either were not aware of any such rule or felt free to ignore it. Thus, even if Respondent had such a rule, it was not adequately communicated to employees.

[6] Had he remained in the bucket, Martin might still have contacted the primary lateral. This would not, however, have been a violation of the standard. The standard explicitly permits contact with energized parts if the employee is adequately insulated from other conductive objects. The record shows that the bucket would have provided such insulation.

[7] We do, however, have serious reservations concerning the Judge’s conclusion that Respondent should have enforced a rule requiring crew members to inform it of safety infractions committed by other members. Certainly, for a safety program to be adequate, an employer must have some means of discovering violations committed by employees. See Ocean Electric Co., Docket No. 5811, BNA 3 OSHC 1705, CCH OSHD para. 20,167 (1975). The record reveals, however, that Respondent did not rely solely on information supplied by other crew members, but also that each crew was frequently checked by supervisory personnel. Considering that the crew members were relatively skilled and experienced, this degree of supervision appears adequate. See Horne Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir., Feb. 26, 1976); Brennan v. OSHRC, (Hanovia Lamp Div.), 502 F.2d 946 (3rd Cir. 1974).

[8] Dunlop v. Rockwell International, No. 75–1672 (6th Cir., August 26, 1976); Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1976).

[9] Secretary v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973).

[10] See Dunlop v. Rockwell International, supra.

[11] As the 9th Circuit pointed out in Hendrix, supra ‘. . . the Secretary has at least the initial burden of establishing a prima facie case of employer knowledge before the burden of going forward shifts to the employer.’

[12] A review of the referenced transcript page reveals the following dialogue between complainant’s counsel and employee Waiswilos:

Q. Who normally checks to see whether the line was energized?

A. We would, [Martin] and I.’ (Emphasis added.)

[13] The citation was issued under 29 U.S.C. § 658(a) and Respondent’s notice of contest was filed pursuant to 29 U.S.C. § 659(a).

[14] 29 C.F.R. § 1926.950(b)(1) reads:

(b) Initial inspections, tests, or determinations

(1) Existing conditions shall be determined before starting work, by an inspection or a test. Such conditions shall include, but not be limited to, energized lines and equipment, conditions of poles, and the location of circuits and equipment, including power and communication lines, CATV and fire alarm circuits.

[15] 29 C.F.R. § 1926.950(c)(1) reads:

(c) Clearances

The provisions of subparagraph (1) or (2) of this paragraph shall be observed.

(1) No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V–1, unless:

(i) The employee is insulated or guarded from the energized part (gloves or gloves with sleeves rated for the voltage involved shall be considered insulation of the employee from the energized part), or

(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or

(iii) The employee is isolated, insulated, or guarded from any other conductive object(s), as during live-line bare-hand work.

Table V–1 requires a minimum distance of 2 feet when the voltage range is between 2.1 and 15 kilovolts.

[16] Although Respondent’s employee and the Business Manager of the employees’ Union testified at the hearing.

[17] Although, as previously noted, Anthony Waiswilos had been in the bucket that morning

[18] Table V–1 requires a minimum distance of 2 feet when the voltage range is between 2.1 to 15 kilovolts.