UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4210
UNITED TELEPHONE COMPANY OF THE CAROLINAS,
Respondent.

August 26, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

On February 7, 1974, Administrative Law Judge J. Marker Dern issued a decision finding respondent-employer, United Telephone Company of the Carolinas, in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as the ‘Act’] for failing to comply with the safety standard published at 29 CFR § 1926.550(a)(15)(i).[1] A penalty of $600 was assessed.

Pursuant to section 12(j) of the Act, Commissioner Moran directed review on the following issues:

(1) Were the construction safety standards applicable to respondent as alleged?

(2) Did the Judge properly conclude that 29 C.F.R. § 1926.550(a)(15)(i) was applicable to the activities in which the respondent was engaged?

We affirm the Judge’s decision.

The respondent-employer is a utility operating telephone systems in South Carolina and North Carolina. On July 30, 1973, three of respondent’s employees, two linemen and a lineman-in-charge, were dispatched to a worksite three miles north of Ridgeland, South Carolina. Their job was to move telephone lines from the path of construction of Interstate Highway 95. The work required that employees dig a hole at a previously staked spot, set a new pole in the hole, transfer the telephone lines, and remove the old pole. The men performing the work were regarded as forming a construction crew. The work was under the supervision of a construction foreman, Mr. Clark.[2]

Upon arrival at the site shortly before noon, the crew observed that they would be working in close proximity to electric power lines. During their lunch hour, the employees discussed the hazards of working near electrical lines.

The line truck, operated by the lineman-in-charge, Mr. Odom, was positioned to dig the hole. Having completed that task, Mr. Odom moved the boom to the left. While the boom was being moved, it came close to, or made contact with, an electric power line. Mr. Odom observed an arc, and called out to the linemen to ‘watch it.’ The two linemen, apparently in contact with the truck, were electrocuted.

The accident precipitated an inspection by the Secretary, after which respondent was issued a citation alleging a serious violation of the Act for failure to comply with the safety standards published at 29 CFR § 1926.550(a)(15)(i) and 29 CFR § 1926.955(a)(6)(ii). Following a hearing, Judge Dern found respondent in violation of § 1926. 550(a)(15)(i). He rejected the argument that the standard was inapplicable to respondent because it was not engaged in construction work. The Judge, however, found § 1926.955(a)(6)(ii) to be inapplicable to respondent because that standard is under Subpart D of Part 1926, which is specifically applicable to the power transmission and distribution industry, and respondent is not in that industry.[3]

Subsequent to the issuance of the citation in this case the Department of Labor issued proposed standards specifically applicable to the telecommunications industry.[4] These have since been adopted, and are codified at 29 CFR § 1910.268.[5] Under this section, the movement of telephone lines is described as field work,[6] and the condition for which respondent was cited is now regulated by § 1910.268(b)(7) and § 1910.268(j)(4)(i) and (ii).

Respondent argues that because the movement of telephone poles and lines is classified under § 1910.268(a)(1) as ‘field work,’ such work was never considered to be ‘construction work’ and, therefore, was never intended to have been regulated by the construction standards of part 1926. Respondent cites § 1910.268(a)(2)(i) which states that the new standards do not apply to ‘construction work, as defined in § 1910.12. . . .’ We are not persuaded.

At 29 CFR § 1910.12(b) ‘construction work’ is defined as ‘work for construction, alteration, and/or repair, including painting and decorating.’ Erecting and removing telephone poles, and transferring lines is reconstruction constituting ‘alterations,’ and, therefore, ‘construction work’ as defined in § 1910.12(b). It is also incidental to subsequent construction and part of the total work to be performed. The language of § 1910.268(a)(2)(i) and § 1910.268(a)(1) does not compel a different interpretation. Section 1910.268 was promulgated to regulate conditions unique to the telecommunications industry. 40 Fed. Reg. 13437 (March 26, 1975). Some comments on the proposed regulations interpreted the requirements as applying to all construction work. To dispel the confusion, § 1910.268(a)(2)(i) was promulgated to indicate that, having been developed for conditions unique to the telecommunications industry, the standards would not be applicable to work which might otherwise qualify as ‘construction’ as defined in § 1910.12. 40 Fed. Reg. 13437 (March 26, 1975). The purpose of that standard is not, as respondent argues, to intimate that conditions now regulated under § 1910.268 were never previously considered ‘construction work.’ It is clear that erecting and removing telephone poles and transferring lines were reclassified at § 1910.268(a)(1) as ‘field work’ to further emphasize that the regulations apply only to the telecommunications industry. Thus, we conclude that prior to reclassification the erection and removal of telephone poles and the transfer of lines was considered ‘construction work’ and subject to all pertinent construction standards.

Respondent also argues that a review of the legislative history of the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 327 et seq., popularly called the Construction Safety Act, fails to show any intent that it apply to the telecommunications industry. Respondent contends that, because the construction standards of 29 CFR § 1926 were adopted as established federal standards from the Construction Safety Act, Part 1926 standards cannot be applicable to its industry. Respondent’s argument lacks merit.

Subpart B of Part 1910 adopts established federal standards as OSHA standards. Section 1910.11(a) specifically states that these established federal standards are extended to every employer, employee, and employment covered by the Act, thereby clearly indicating that these established standards will apply under OSHA to places of employment where they had not previously been applicable.

Finally, respondent argues that the inapplicability of the construction standards to the telecommunications industry can be inferred through the process in which the Secretary adopted specific construction standards for the power transmission and distribution industry, codified in Subpart V of Part 1926 (29 CFR § 1926.950 et seq.). Respondent cites to § 1910.12(d) and § 1926.950(a)(1) adding ‘the erection of new electric transmission and distribution lines and equipment, and the alteration and repair of existing electrical transmission and distribution lines’ to the definition of construction work. According to respondent, many of the problems of the electric utility industry also exist in the telecommunications industry, inasmuch as work is often performed in close proximity to electrical lines and poles and other structures are often used jointly by the two industries. Therefore, it is argued that if it were intended to apply the construction standards to the telecommunications industry, a similar amendment to the definition of ‘construction work’ would have been adopted. We are not persuaded.

Section 1910.12(d) states that ‘to the extent that it may not be already included’ in the definition of ‘construction work,’ electrical transmission shall be considered to be construction work. Therefore, it cannot be stated that the construction standards were not previously applicable to the electrical transmission industry. Further, § 1910.268(a)(3) states that operations which qualify as construction work under § 1910.12 are subject to all the applicable standards of Part 1926. That the Secretary did not amend the definition of ‘construction work’ to expressly include the telecommunications industry implies that the construction standards were always intended to be applicable to the telecommunications industry. Indeed, we read § 1910.268(a)(3) as a reaffirmation of the policy, set forth in § 1910.12(a), which extends the applicability of the Part 1926 standards to all employment and places of employment engaged in construction work. See 40 Fed. Reg. 13437 (March 26, 1975). As previously noted, prior to being reclassified as ‘field work,’ the work involved in the instant case was ‘construction’ within the ambit of § 1910.12(b).

Briefly stated, at the time of the citation the general construction standards were applicable to the erection and rearrangement of telephone lines. Subsequent to the citation the Secretary adopted standards specifically applicable to the telecommunications industry. We do not construe this action to suggest, as argued by respondent, that the general construction standards were never applicable to telecommunications. On the contrary, we interpret the Secretary’s actions as preempting the applicability of certain general construction standards by adopting standards specifically drafted for the telecommunications industry.

Neither party has disputed the Judge’s assessment of a $600 penalty, and we find no error in that regard. See Thorlief Larsen & Son, Inc., 1974-75 CCH OSHD para. 18,826, BNA 2 OSHC 1256 (No. 370, 1974).

Accordingly, it is ORDERED that the Judge’s decision is AFFIRMED and a $600 penalty is assessed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: AUG 26, 1976

Appendix

§ 1926.550—Cranes and Derricks

(a) General requirements.

(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

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

§ 1910.268—Telecommunications

(a) Application.

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

(2) These standards do not apply:

(i) To construction work, as defined in § 1910.12 . . .

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

(b) General.

(7) Approach distances to exposed energized overhead power lines and parts. The employer shall ensure that no employee approaches or takes any conductive object closer to any electrically energized overhead power lines and parts than prescribed in Table R-2, unless:

(i) The employee is insulated or guarded from the energized parts (insulating gloves rated for the voltage involved shall be considered adequate insulation), or

(ii) The energized parts are insulated or guarded from the employee and any other conductive object at a different potential, or

(iii) The power conductors and equipment are deenergized and grounded.

TABLE R-2—Approach Distances to Exposed Energized Overhead Power Lines and Parts

Voltage range (phase to phase, RMS)	Approach distance (inches)
300V and less	⁽¹⁾
Over 300V, not over 750V	12
Over 750V, not over 2k	18
Over 2kV, not over 15kV	24
Over 15kV, not over 37kV	36
Over 37kV, not over 87.5kV	42
Over 87.5kV, not over 121kV	48
Over 121kV, not over 140kV	54
⁽¹⁾ Avoid contact

***

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

***

(4) Derrick trucks and similar equipment.

(i) This equipment shall not be operated with any conductive part of the equipment closer to exposed energized power lines than the clearances set forth in Table R-2 of this section.

(ii) When derricks are used to handle poles near energized power conductors, these operations shall comply with the requirements contai ed in paragraph (b)(17) and (n)(11) of this section.

SUBPART V—ADOPTION AND EXTENSION OF ESTABLISHED FEDERAL STANDARDS

§ 1910.11—Scope and Purpose

(a) The provisions of this Subpart B adopt and extend the applicability of, established Federal standards in effect on April 28, 1971, with respect to every employer, employee, and employment covered by the Act.

§ 1910.12—Construction Work

(a) Standards.

The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

(b) Definition.

For purposes of this section, ‘construction work’ means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in § 1926.13 of this title.

(d) For the purposes of this part, to the extent that it may not already be included in paragraph (b) of this section, ‘construction work’ includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of the existing transmission and distribution lines and equipment.

SUBPART V—POWER TRANSMISSION AND DISTRIBUTION

§ 1926.950 General Requirements

(a) Application.

The occupational safety and health standards contained in this Subpart V shall apply to the construction of electric transmission and distribution lines and equipment.

(1) As used in this Subpart V the term ‘construction’ includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment.

MORAN, Commissioner, Dissenting:

The safety standards set forth in 29 C.F.R. Part 1926 apply only to construction work. Therefore, when an employer is not performing that type of work, he cannot be held in violation of any of the standards contained in that part.

As my colleagues point out, subsequent to the issuance of the citation in this case the Secretary of Labor issued proposed regulations specifically applicable to the telecommunications industry.[7] These regulations have since been adopted and codified at 29 C.F.R. § 1910.268.[8] They clearly state at 29 C.F.R. § 1910.268(a)(1) that the work for which respondent was cited, the ‘rearrangement . . . of conductors and other equipment used for signal or communication service and of their supporting . . . structures’ is ‘field’ work and therefore subject to the regulations under 29 C.F.R. § 1910.268. Furthermore, 29 C.F.R. § 1910.268(a)(2)(i) states in no uncertain terms that the regulations under 29 C.F.R. § 1910.268 do not apply to ‘construction’ work, as that term is defined in 29 C.F.R. § 1910.12. Therefore, since the work done by respondent is covered by the new regulations, as my colleagues concede, and since those regulations by their very wording do not apply to construction work, it is manifest that the work done by respondent cannot be considered ‘construction’ work and thus subject to the construction safety standards.

Simply stated my colleagues are saying that the type of work performed by respondent constitutes construction work if performed before the effective date of the new regulation, but that the same work is not construction work if it was performed after that date.[9] Such a proposition is beyond the bounds of reasons. Either it is construction work or it isn’t. What is construction work one minute cannot be transformed into something else in the next minute by a stroke of my colleagues’ pens. Even a member of the Occupational Safety and Health Review Commission—or a majority of that tribunal’s members—cannot make a silk purse out of a sow’s ear.

The Secretary of Labor’s regulation clearly indicates that the work here in issue is not construction work. That position was made a matter of public record as long ago as August 28, 1973. It is entitled to great weight and should not be altered unless it is clearly unreasonable, which it obviously is not in this case. Brennan v. Southern Constructors Service, 492 F.2d 498 (5th Cir. 1974).

Since this decision does not deal with all matters covered in Judge Dern’s decision, the same is attached hereto as Appendix A.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4210
UNITED TELEPHONE COMPANY OF THE CAROLINAS,
Respondent.

FINAL ORDER DATE: March 11, 1974

DECISION AND ORDER

Appearances:

Mr. Joe D. Sparks, Attorney at Law, Office of the Solicitor, 1371 Peachtree Street, N.E., Atlanta, Georgia, for the Complainant

Mr. George R. Greer, Attorney at Law, P.O. Box 1107, 1001 Craven Street, Beaufort, South Carolina, for the Respondent

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at three miles north of Ridgeland, South Carolina, adjacent to U. S. Highway 17 and proposed I–95 temporary route and described as ‘telephone utility,’ the respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof.

The citation, which was issued on August 7, 1973, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register on December 16, 1972, (37 F.R. 27545 and 27580), and codified in 29 CFR 1926. The description of the alleged serious violation contained on said citation states:

Item No. 1 Failed to keep the minimum clearance of ten feet between all parts of a line truck, with center mount derrick and hydraulic boom, and 8KV electric power lines which had not been deenergized at a site near Ridgeland, S. C., adjacent to U. S. Highway 17 at the vicinity of South Carolina Electric and Gas Company power lines.

Item. 2 Failed to bond lifting equipment to an effective ground when that equipment, the line truck with center mount derrick and hydraulic boom, was used near energized lines at the site near Ridgeland, S. C., adjacent to U. S. Highway 17.

The standards as promulgated by the Secretary provide as follows:

29 CFR 1926.550(a)(15)(i). Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, nor a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

(i) For lines rated 50kV. or below minimum clearance between the lines and any part of the crane or load shall be 10 feet;

29 CFR 1926.955(a)(6)(ii). Lifting equipment shall be bonded to an effective ground or it shall be considered energized and barricaded when utilized near energized equipment or lines.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated August 7, 1973, from William H. Duncan, Area Director of the Columbia, South Carolina area, Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess a penalty for the violation alleged in the amount of $600.00.

After respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case came on for hearing at Charleston, South Carolina, on December 11, 1973. No parties desired to intervene in the proceeding.

ISSUES

The issues pertinent to resolving this proceeding are as follows:

1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the safety standards published at 29 CFR 1926.550(a)(15)(i) and 29 CFR 1926.955(a)(6)(ii)?

2. Are the cited standards inapplicable to the respondent since, as contended by respondent, the activities of the respondent, a telephone utility, are not included within the definition of ‘construction work’ as defined in 29 CFR 1910.12(b)?

3. If the respondent violated any of the alleged standards, was the resulting violation or violations of a serious nature as defined by section 17(k) of the Act?

4. What penalty, if any should be assessed for any violation of the Act?

FINDINGS OF FACT

1. The respondent, United Telephone Company of the Carolinas, is a utility which operates telephone systems in South Carolina and North Carolina (Para. I and II, Complaint, Answer, (TR 125, 141).

2. On July 30, 1973, a three-man construction crew consisting of a lineman-in-charge and two linemen were assigned the task of moving certain telephone wires approximately three miles from Ridgeland, South Carolina, which was necessitated by the construction of Interstate Highway I–95. The job required the digging of a hole, setting a new pole, moving the telephone wires and removal of the existing poles. The crew arrived at the work site shortly before lunch, at which time they observed that they would be working in close proximity to electric lines. During the lunch hour, the general hazards of working around electric power lines were discussed. The location for the new pole had been staked out and a line truck was positioned to permit a hole to be dug at the prescribed location. The outriggers of the truck were positioned and the hole was dug. The hole digger was returned to its carrying position. During movement of the boom to the left, the lineman-in-charge, who was operating the boom, observed an arc, called to the linemen to ‘watch it’ and immediately moved the boom out of contact with the electric wires.

3. The boom came in actual contact with the 8kV power lines or at least so close as to cause an arc. Testimony indicated that the boom would have to come within one-half inch to cause an arc. Two linesmen apparently were in contact with the truck and were electrocuted.

4. The electric lines were not de-energized at any time during the performance of the activities described above. Neither was a ground stick driven nor were insulating barricades erected around the truck or electrical lines (TR 21–47, 138, 139, Complainant’s Exhibit 1A through 1H, Complainant’s Exhibit 2A through 2G, Complainant’s Exhibit 3A, 3B and Respondent’s Exhibit A and B).

5. The work at the job site was under the jurisdiction of the construction superintendent of the company and his subordinates. The vehicle was of the type used in construction work and the crew involved was designated as a construction crew. The lineman-in-charge is the immediate supervisor charged by the company with the performance of the task and safety at the job site (TR 45–46).

6. The operation of the boom within proximity of energized power lines creates and extremely hazardous condition since the movement of the boom or swaying of the lines into contact with the energized lines will thereby cause an electrical shock to be transmitted to persons in contact with the truck. The resulting shock to such persons under conditions present in this case could result in death. Respondent’s lineman-in-charge knew or should have known of the hazard presented by the conditions observed at the job site (TR 45).

7. Following an investigation by a compliance officer of the office of the Occupational Safety and Health Administration, a citation for serious violation charging respondent with the violation of the aforementioned two safety standards, which were joined as a single violation, was issued August 7, 1973.

8. A notice of proposed penalty in the amount of $600 was also issued as was a notification that the conditions were to be abated ‘without delay but no later than August 10, 1973.’ The operation of the boom or other equipment within proximity to energized power lines of 8kV present conditions of extreme gravity to employees exposed to it.

9. The proposed penalty of $600 was determined in accordance with the administrative guidelines of the Secretary.

DISCUSSION

Respondent was cited for violation of standards promulgated as Safety and Health Regulation for Construction.

Section 29 CFR 1910.12(b), Definition, reads:

For purposes of this section ‘construction work’ means work for construction, alteration, and/or repair, including painting and decorating.

It is reasonable to conclude that when the Secretary intended to exclude a particular industry or type of work from the coverage of Safety and Health Standards under the Act, he spelled this conclusion out in his regulations in clear and unequivocal language. This is now being contemplated in the Secretary’s proposed standards for telecommunication but which have not been promulgated and, of course, do not have presently any effect. Nowhere in present Safety and Health Regulations is there an exclusion of coverage of the telecommunication industry.

Construction must be construed in the common acceptance found in the industry. Respondent was constructing or altering its telecommunication line, moving a pole. See ‘Construction’ Words and Phrases, Vol 8A page 486, with reference to telephone lines and construction. In this act of construction, the accident arose which lead to the issuance of the citation. Therefore, it is concluded that respondent was properly cited under subsection N, Occupational Safety and Health Regulations for Construction involving Cranes, Derricks, Hoists, Elevators and Conveyors.

With respect to violation of section 29 CFR 1926.550(a)(15)(i), the evidence is relatively undisputed. Respondent’s employees were in the process of relocating a pole, when the lineman-in-charge, who was operating a derrick, elevated the boom which came near to or came in contact with an energized 8kV line. The standard cited prohibited use of ‘machines’ within ten feet of ‘lines rated 50 kV or below.’ Therefore, a violation of the standard occurred.

Is the violation of the safety standard a violation attributed to respondent? Respondent refers to the instructions of its employees as to clearances required under the ‘Bell System Practice’ a manual of the Bell Telephone Company, and of its instructions to the lineman-in-charge with respect to such ‘Practice,’ thereby implying that the violation was an isolated brief violation by an employee unknown to the employer and consequently not a violation of the respondent. An employer may be exempt from responsibility for a violation where the employee violates common policy and exposes himself and others to injury provided the accident is caused by an employee action; the action or hazard is an isolated incident of short duration; the action is against company procedures and participation in the action is not made with the knowledge of a supervisor. In the instant case, a lineman-in-charge, at the work site, represented the respondent, had knowledge of the energized electrical line, and acted in such manner as to cause contact of the boom he was operating with the energized line. This knowledge is imputed to the respondent and consequently, respondent is responsible for the violation of the safety standard.

The evidence on the part of complainant failed to establish a violation of safety standard 29 CFR 1926.955(a)(6)(ii) since the standard is under subpart D involving Power Transmission and Distribution in which businesses respondent was not involved. The standard is inapplicable to respondent.

Having found respondent in violation of a safety standard, was the violation of a serious nature?

Section 17(k) describes ‘serious’ violations in the following language:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

A fact recognized by an ordinary layman is that coming into close proximity to a highly energized electrical line constitutes a danger which could result in serious physical harm or death. This was recognized and discussed by respondent’s employees at the work site. Section 17(j) of the Act sets forth the criteria by which the penalty for an infraction is to be determined. Evidence concerning the violation’s gravity and the employer’s size, his prior history of violations and good faith must be considered. The Commission has long recognized the gravity of the violation to be the most significant factor. Factors requiring consideration in gauging gravity include the number of employees exposed; the duration of their exposure; the precautions taken against injury; and the degree of probability of occurrence of injury.

On the basis of the record evidence, the gravity of the violation in this case must be ranked as high. Three employees were exposed to the contemplated hazard. The safety practices of the respondent are of a high quality and were disseminated with certainty to its employees. Under the administrative procedures of the complainant, considerations, involving the proposed penalty, were given to good faith and prior compliance history of the respondent and a proposed penalty of $600 was issued. Under the undisputed facts, it is believed that such proposed penalty is appropriate for the serious violation of the safety standard.

CONCLUSIONS OF LAW

1. Respondent at all material times hereto is an ‘employer’ engaged in ‘commerce’ as those terms are defined in section 3 of the Act and is subject to the provisions of the Occupational Safety and Health Act of 1970.

2. On July 30, 1973, respondent was in violation of 29 CFR 1926.550(a)(15)(i), which is of a serious nature within section 17(k) of the Act.

3. Complainant failed to prove a violation of 29 CFR 1926.955(a)(6)(ii).

ORDER

Accordingly, it is Ordered that:

The citation for serious violation of 29 CFR 1926.500(a)(15)(i), penalty of $600 and abatement date are affirmed.

The portion of the citation referring to violation of section 29 CFR 1926.955(a)(6)(9)(ii) is vacated.

Dated this 7th day of February, 1974.

J. MARKER DERN

Judge, OSHRC

Copies by certified mail to:

Mr. Joe D. Sparks

Mr. Edwin Hernandez

Attorneys at Law

Office of the Solicitor

1371 Peachtree Street, N. E.

Room 339

Atlanta, Georgia 30309

[1] The texts of the standards cited in this opinion are attached as an appendix.

[2] Mr. Clark was not at the site at the time of the accident.

[3] Neither party excepted to the Judge’s vacating of this item and it is not before us.

[5] The standards had not been adopted at the time the parties submitted their briefs. As proposed, the standards were to be codified at § 1910.330 et seq. They were adopted, however, at § 1910.268. The proposed standards cited by the parties are substantively similar to the adopted standards. We will cite to the standards as codified.

[9] In other words if respondent was cited while performing the same work today, Messrs. Cleary and Barnako would now change positions and say that 29 C.F.R. § 1910.268 applied because the work is not construction work.