Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 5209

WISCONSIN ELECTRIC POWER

COMPANY,

Respondent.

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

The decision of Administrative Law Judge Ben D. Worcester rendered on October 15,

1974, is before the Commission for review pursuant to section 12(j) of the Occupational Safety

and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’].

In his decision Judge Worcester vacated a citation that alleged that respondent had

committed a serious violation of the Act for failure to comply with the occupational safety and

health standard at 29 CFR § 1926.955(a)(6)(ii). For the reasons that follow we reverse.

Respondent is a corporation engaged in the construction and maintenance of lines and

systems for the distribution of electric power. On September 5, 1973, respondent was engaged in

the reconstruction of existing facilities and the part of this operation relevant herein involved the

transfer of overhead high energy wires from an old to a new utility pole.

The crew performing this work consisted of three of respondent’s employees, viz., a

foreman and two electric linemen. The inspection giving rise to the issuance of the citation in

this case followed the electrocution of one of the linemen during the wire transfer operation.

The material facts surrounding this fatal accident were stipulated by the parties and can

be summarized as follows.

The crew used two trucks during the wire transfer. The first, referred to as an ‘electric

line truck,’ is used to transport men, tools, and material and serves as a traveling workshop for

electric power line construction and maintenance work. This truck was equipped with a boom

and auxiliary equipment for setting poles, digging holes, and elevating material or men. A utility

trailer carrying miscellaneous equipment was attached to this truck. The second vehicle, referred

to as a ‘bucket truck,’ was equipped with a boom with a large bucket on the end used for lifting

material or men.

The transfer of the high energy wire from the old to the new utility pole was to be

accomplished by using the boom of the electric line truck, operated by the foreman, to lift the

wire, while the lineman positioned in the bucket of the bucket truck guided the wire into its new

position.

The decedent took no part in this operation and remained on the ground. At the start of

the transfer he was observed standing approximately ten feet away from the utility trailer

attached to the electric line truck. At this time the foreman called to decedent to stay away from

the trucks, repeating instructions that had been given to the linemen earlier that day. Decedent

did not respond in any manner to indicate that he had heard this warning.

Two lengths of line hoses had been installed on the outside primary wire. As the crew

foreman raised the boom of the electric line truck into position, the lineman in the bucket truck

placed the center wire into the hook of the boom and the transfer began. During the transfer, the

lineman noticed that the outside line was coming close to contacting the boom and he told the

foreman to stop raising the wire. He then reached out of the bucket to secure temporarily the

center wire to allow him to shift the line hoses.

An arcing sound was then heard and decedent was observed falling to the ground next to

the trailer. Decedent was pronounced dead on arrival at a nearby hospital. A medical

examination revealed burns across decedent’s shoulders, arms, and neck.

Respondent’s accident investigation report concluded that the fatality occurred when

decedent touched the trailer which had become energized when the metal portion of the boom of

The stipulated description of this vehicle conforms to the definition of ‘electric line trucks’

found at 29 CFR § 1926.960(q):

The term means a truck used to transport men, tools, and material, and to serve as

a traveling workshop for electric power line construction and maintenance work.

It is sometimes equipped with a boom and auxiliary equipment for setting poles,

digging holes, and elevating material or men.

A line hose is a rubber insulative device intended to serve as a barrier to prevent contact with

an energized wire.

the electric line truck contacted the outside primary wire. The nature and extent of the burns

indicated a longer than momentary contact; it was theorized that decedent had fallen against the

energized trailer after he had initially established contact.

From burn marks on the boom and the wire it was determined that the fiberglass sleeve

on the boom had not been fully extended and that the exposed portion of the boom had contacted

the energized wire at a point beyond the area covered by the protective line hoses. Neither of the

trucks had been grounded nor had any barricades been erected around the trucks.

An inspection of the worksite was made by an OSHA compliance officer on September

7, 1973, and respondent was issued a citation for a serious violation of 29 CFR §

1926.955(a)(6)(ii) for failing to either bond the line truck to an effective ground or to consider it

energized and barricade it. A penalty of $600 was proposed.

Respondent timely filed a notice of contest as to both the citation and the proposed

penalty. Following a pre-hearing conference, the parties agreed that the matter would be

submitted to the Judge for decision on the basis of these stipulated facts and briefs addressing the

questions of law involved.

In its brief to the Judge, respondent argued that the citation should be vacated for either

of two reasons: the standard under which it was cited is not applicable to the situation involved

or, if it is applicable, the standard is unconstitutionally vague. Both of these contentions were

rejected by the Judge. Nevertheless, he proceeded to vacate the citation on the grounds that the

respondent ‘had done everything within its power’ to assure that the relevant safety and health

standards were complied with and that the hazard involved was in fact created by a supervisory

employee’s ‘inept’ performance of his duties for which respondent could not be held responsible.

§ 1926.955 Overhead lines.

(a) Overhead lines. (1) When working on or with overhead lines the provisions of

subparagraphs (2) through (8) of this paragraph shall be complied with in

addition to other applicable provisions of this subpart (emphasis added).

* * *

(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 (emphasis added.)

At the hearing, however, the parties agreed that if a violation was found, the $600 proposed

penalty was an appropriate penalty under the Act.

The Secretary petitioned the Commission for review of this decision and the petition was

granted pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i).

Before the Commission, respondent repeats its arguments that the cited standard is

inapplicable and void for vagueness, and also adopts the rationale relied on by the Judge in

vacating the citation. We agree with the Judge’s conclusions that the standard under which

respondent was cited is applicable to these facts and that it is not unconstitutionally vague. We

do not agree, however, that respondent took all necessary precautions to prevent the occurrence

of the violation. Indeed, the stipulated facts establish the contrary conclusion.

II.

In determining the applicability of the cited standard to the facts before us, the initial

question is whether the electric line truck is ‘lifting equipment’ within the meaning of the

standard. Respondent argues that the term refers to, ‘A-frames, cranes and the like, but not

electric line trucks which are traveling workshops for the crews . . . We find this contention to be

without merit.

The definition of an ‘electric line truck’ states that such vehicles are sometimes equipped

with booms for ‘setting poles, digging holes, and elevating material or men’ (emphasis added).

In § 1926.952(c)(ii) an electric line truck is referred to as a ‘derrick truck.’ Derrick trucks, in

turn, are classified together with ‘cranes and other lifting equipment . . .’. § 1926.952(c)(1)

(emphasis added). Reading these provisions together it is clear that an electric line truck

The Commission has held by divided vote that it has the power to declare a standard void on

grounds of vagueness. Santa Fe Trail Transport Co., 5 OSAHRC 840, BNA 1 OSHC 1457,

1973–74 CCH OSHD para. 17,029 (No. 331, 1973) (dissenting opinion), rev’d on different

grounds, 505 F.2d 869 (10th Cir. 1974).

In Ocean Electric Corp., BNA 3 OSHC 1705, CCH 1975–76 OSHD para. 20,167 (No. 5811,

1975), we recognized such a defense and discussed the type of proof required to establish the

defense.

7 29 CFR § 1926.960q. See n.1, supra.

29 CFR § 1926.952(c)(ii) provides in part:

Derrick truck (electric line trucks) shall not be required to comply with. . . .

29 CFR § 1926.952(c) provides in part:

(1) All derrick trucks, cranes and other lifting equipment shall comply with . . ..

equipped with a boom for elevating materials or men is lifting equipment within the meaning of

§ 1926.955(a)(6)(ii).

Furthermore, aside from this explicit textual support in the standards, the following

stipulated descriptions of the vehicle and the manner in which it was used clearly show that it is

properly classified as lifting equipment:

The truck was equipped with a boom and auxiliary equipment for . . . elevating

materials and men. (STIPULATION #6).

A decision was made by the men to use the boom on the Super Combo [electric

line] truck to raise the center line from the old pole to the new pole

(STIPULATION #18).

Based on the above, we conclude that respondent’s electric line truck is ‘lifting

equipment’ and therefore must comply with the provisions of § 1926.955(a)(6)(ii) in situations to

which that standard applies.

Respondent proceeds to argue that § 1926.955(a)(6)(ii) is not applicable on the facts of

this case. It contends that 29 CFR § 1926.952(c)(2) is the applicable standard and that since it

was in compliance with this standard, a violation cannot be found. Assuming arguendo that

respondent was in compliance with § 1926.952(c)(2), we find that compliance with that standard

in no way abrogates the duty to also comply with § 1926.955(a)(6)(ii).

The basis for respondent’s contrary assertion is § 1926.955(a)(5)(ii) which provides:

10 The standard reads:

§ 1926.952 Mechanical Equipment.

(2) With the exception of equipment certified for work on the proper voltage,

mechanical equipment shall not be operated closer to any energized line or

equipment than the clearances set forth in § 1926.950(c) unless:

(i) an insulated barrier is installed between the energized part and the

mechanical equipment, or

(ii) the mechanical equipment is grounded, or

(iii) the mechanical equipment is insulated, or

(iv) the mechanical equipment is considered as energized.

It was stipulated that respondent ‘took all reasonable measures to ensure that its employees

were properly aware of the safety measures prescribed by’ § 1926.952(c)(2). Because of our

decision it is not necessary to decide whether respondent was in fact in compliance with this

standard as a matter of law.

Equipment and machinery operating adjacent to energized lines or equipment

shall comply with § 1926.952(c)(2).

Respondent argues that this specific referral to § 1926.952(c)(2) in the subsection of § 1926.955,

immediately preceding the subsection under which respondent was cited, can reasonably be

interpreted to mean that compliance with § 1926.952(c)(2) was all that was required in this

situation.

This argument was correctly rejected by the Judge. The introductory paragraph of §

1926.955 provides:

When working on or with overhead lines the provisions of subparagraphs (2)

through (8) of this paragraph shall be complied with in addition to other

applicable provisions of this subpart.

(Emphasis added).

The emphasized portions of the above-quoted paragraph make it abundantly clear that the

need to comply with § 1926.955(a)(6)(ii) is in no way dispensed with by complying with §

1926.955(a)(5)(ii). These standards impose cumulative requirements; they are not mutually

exclusive. Therefore, although § 1926.955(a)(5)(ii) directs compliance with § 1926.952(c)(2),

the more restrictive requirements of § 1926.955(a)(6)(ii) must also be met where applicable. .

As we have held that this standard applies to the facts of this case and as it was stipulated

that neither of the trucks was bonded to an effective ground nor barricaded, a violation must be

found unless respondent has established an appropriate defense.

Respondent’s arguments that the standard is so vague and ‘confusingly juxtapositioned’

as to deny respondent due process of law if it is found in violation thereof, were correctly

rejected by the Judge. He held that § 1926.955(a)(6)(ii) is neither vague, arbitrary, nor

confusing, and with this part of his holding we agree. The conduct required by the standard is

29 CFR § 1926.955(a)(i).

§ 1926.952(c)(2) is a more general standard that specifies four alternative measures, one of

which must be taken if certain equipment is to be operated closer to energized lines or equipment

than the distances provided for in the appropriate minimum clearance table, see § 1926.950(c). §

1926.955(a)(6)(ii), however, specifically requires that where overhead lines are involved, lifting

equipment must be either grounded or barricaded.

See n.5, supra.

clearly stated and the alleged belief that compliance with § 1926.952(c)(2) eliminates the need to

comply with the cited standard is unwarranted in view of the express terms of § 1926.955(a)(i).

Finally, we are urged to affirm the vacation of the citation on the grounds that respondent

had done everything within its power to assure compliance and that the violation had resulted

from the foreman’s failure to follow respondent’s established safety rules and procedures.

Neither of these conclusions has adequate support in the record and the vacation of the

citation must be reversed.

Firstly, respondent did not take all necessary precautions to assure compliance with the

cited standard. Although respondent as part of its safety program had issued both general safety

rules and specific instructions as to compliance with various standards, including §

1926.952(c)(2), it was stipulated that not only was the equipment neither grounded nor

barricaded as required by § 1926.955(a)(6)(ii), respondent had not issued any instructions

whatsoever in regards to complying with the provisions of this standard.

This complete lack of appropriate instructions is directly attributable to respondent’s

erroneous decision that compliance with this standard was not necessary. In view of our holding

that this conclusion was contrary to the express terms of the applicable standards, this error in

interpretation can in no way be relied upon to justify the failure to issue appropriate instructions.

Secondly, the violation was not the result of any unpreventable employee misconduct.

The creation of the hazard upon which this violation is based, i.e., the failure to ground or

barricade the electric line truck while working on overhead energized lines, was the direct result

of respondent’s decision that compliance with the cited standard was not necessary. The

violation is not founded on any failure of the foreman to follow respondent’s instructions

regarding compliance with other related standards.

The Judge’s decision implied that if the employees had carefully followed their instructions

‘by using insulated covers which prevent contact with that portion of the equipment which is a

conductor of electricity,’ no violation would have resulted. This is erroneous. Although the

placing of insulated ‘barriers’ between the energized part and the mechanical equipment being

used is an option under § 1926.952(c)(2), it is not an available alternative under the cited

standard. § 1926.955(a)(6)(ii) requires that if the lifting equipment is not grounded, a ‘barricade’

must be erected around the equipment itself. The barricade is for the protection of employees in

the area around the equipment. It provides warning that the equipment is considered energized

and limits access to such equipment.

The Judge appears to have confused the terms ‘barricade’ and ‘barrier’ as used in

Having found respondent to be in violation of the Act, we must determine the nature of

that violation. The Secretary termed this a ‘serious’ violation for penalty purposes. We agree.

To establish that a violation is ‘serious’ it must be shown that there is a substantial probability

that death or serious physical harm could result from the violative condition and that the

employer knew or with the exercise of reasonable diligence could have known of the presence of

the violation. 17 Both of these conditions are herein met.

Respondent had actual knowledge of the existence of the violative condition; indeed,

respondent’s erroneous decision that it need not comply with the standard was the direct cause of

the violation. In view of the fact that the employees were engaged in the transfer of energized

primary wires, if injury occurred there was a substantial probability that the injury would be

serious or fatal.

The parties have stipulated that if a violation is found, the proposed penalty of $600 is

appropriate in that this amount was determined by giving due consideration to the factors

specified in section 17(j) of the Act. While we are not bound to accept the stipulation of the

parties on this issue, since there is no objection to the agreed upon penalty from any party,

authorized employee representative, or affected employee, and the amount of the agreed upon

§ 1926.955(a)(6)(ii) and § 1926.952(c)(2), respectively. The terms are separately defined in the

subpart. (Compare §§ 1926.960(c) and (d)).

Section 17(k) of the Act provides:

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.

See note 16, supra. As to the burden of proof on knowledge, Commissioner Cleary would add

that his views are in accordance with those expressed in Atlas Roofing Co., Inc. v. O.S.H.R.C.

and U.S. Department of Labor, 518 F.2d 990 (5th Cir. 1976) (cert. granted).

The Secretary need not establish the likelihood of an accident in order to prove that a violation

is serious. It need only be shown that an accident is possible and that such an accident will most

likely result in serious injury. Brady-Hamilton Stevedore Co., BNA 3 OSHC 1925, CCH 1975–

76 OSHD para. 20,342 (No. 2265, 1976); California Stevedore & Ballast Co., 4 OSAHRC 642,

BNA 1 OSHC 1305, CCH 1973–74 OSHD para. 16,520 (No. 14, 1973), aff’d F.2d 986 (9th Cir.

1975). The injury which actually occurred in this case is not a determinative factor in the finding

of a violation.

penalty is not clearly repugnant to the purposes of the Act, we will not exercise our right to make

a de novo penalty assessment. Thorleif Larsen & Sons, Inc., 12 OSAHRC 313, BNA 2 OSHC

1256, CCH 1974–75 OSHD para. 18,826 (No. 370, 1974).

Accordingly, the Judge’s decision vacating the citation is hereby reversed. We find

respondent in serious violation of the Act for failure to comply with the standard at 29 CFR §

1926.955(a)(6)(ii) and assess a penalty of $600.

It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: OCT 21, 1976

MORAN, Commissioner, Dissenting:

My review of the evidence convinces me that respondent complied with 29 C.F.R. §

1926.952(c)(2), the applicable standard, and that complainant erred in citing respondent for a

violation of a standard which did not apply, 29 C.F.R. § 1926.955(a)(6)(ii). An exposition of the

applicable parts of the standards as they appear to an employer trying to determine what he must

do to comply with the Act will amply demonstrate the validity of this position.

The equipment used by respondent at the worksite is defined by complainant in 29 C.F.R.

§ 1926.960(q) 19 as an electric line truck. It was stipulated by the parties that respondent was

operating such a truck adjacent to energized lines.

From 29 C.F.R. § 1926.952(c)(1)(ii), we then learn that electric line trucks are also

referred to as derrick trucks. From the standard that immediately follows, 29 C.F.R. §

1926.952(c)(2) which respondent contends is applicable, we learn that four alternative safety

options are sanctioned when derrick trucks, cranes, or other lifting equipment is operated

adjacent to energized lines. The pertinent portions of section 1926.952(c) are as follows:

(1) All derrick trucks, cranes and other lifting equipment shall comply with

Subpart N and O of this part except:

(ii) Derrick trucks (electric line trucks shall not be required to comply with §

1926.950(a)(7)(vi) . . ..

(2) With the exception of the equipment certified for work on the proper voltage,

mechanical equipment shall not be operated closer to any energized line or

equipment than the clearances set forth in § 1926.950(c) unless:

(i) An insulated barrier is installed between the energized part and the mechanical

equipment, or

(ii) The mechanical equipment is grounded, or

(iii) The mechanical equipment is insulated, or

(iv) The mechanical equipment is considered as energized.’ (Emphasis added.)

Any doubt that the four safety options enumerated above are also sanctioned when

working adjacent to overhead lines is eliminated by section 1926.955(a)(5)(ii), pertaining to

‘Overhead lines.’ It provides:

19 See footnote 1, supra, for the complete text of the definition.

‘Equipment and machinery operated adjacent to energized lines or equipment

shall comply with § 1926.952(c)(2).’

Section 1926.955(a)(6)(ii), the standard the Commission has found respondent in

violation of, immediately follows the above direction to look to 29 C.F.R. § 1926.952(c)(2) to

find out what must be done when machinery is being operated adjacent to overhead lines.

Complainant conceded that respondent complied with § 1926.952 c)(2). It was stipulated

that respondent took all reasonable efforts to see to it that its employees complied with this

standard. In a safety directive which respondent had issued to its employees about the

requirements of § 1926.952(c)(2), respondent had instructed its employees that they could bond

the truck to an effective ground, barricade it, insulate the line, or use an insulated boom or

derrick. Respondent’s crew had chosen to proceed under (i) above in that they installed an

insulated barrier (i.e., line hose) between the energized part (the line) and the mechanical

equipment (the electric line truck) and (iii) in that the boom was equipped with a fiber glass

extension. These were choices which complainant himself offered to them under 29 C.F.R. §

1926.952(c)(2).

Although respondent’s employees sought to comply both with this standard and

respondent’s directives, they did so negligently and permitted the metal portion of the

mechanical equipment on the truck to come into contact with an uninsulated portion of the

energized line, thereby energizing the truck and trailer. Respondent however cannot be charged

with this negligence because the record shows, and complainant stipulated, that respondent took

all reasonable measures to ensure that its employees were aware of this standard. This is all the

Act requires. See Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir.

1976); Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v.

OSAHRC, 512 F.2d 1148 (1st Cir. 1975); Secretary v. Standard Glass Company, Inc., 1

OSAHRC 594 (1972).

The majority found respondent in violation because it did not ground or barricade when

these are but two of the four options that were offered to respondent in 29 C.F.R. §

1926.952(c)(2). This has been done despite the fact that these four options were offered to

respondent by virtue of the type of equipment it was using, an electric line truck, and by virtue of

the type of work it was doing with this truck: work on overhead lines.

Thus, by finding respondent in violation of 29 C.F.R. § 1926.955(a)(6)(ii) which pertains

to lifting equipment, a term that is not defined in the regulations, and which could mean A-

frames, cranes, etc., my colleagues have, contrary to their assertion in footnote 13, found

respondent in violation of a general standard when a specific standard is applicable. This is a

departure from long-standing Commission precedent. Secretary v. Sun Shipbuilding and

Drydock Company, 4 OSAHRC 1020, 1021 (1973). It is bad enough that an employer must plod

through this confusing morass of regulations to ascertain what he must do to comply with the

Act. See Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 649 n.9 (5th Cir. 1976). But it is

totally unjust when an employer who has done so and found the applicable regulation is then told

that another regulation is controlling.

Since this decision does not contain a full exposition of Judge Worcester’s rationale, his

decision is attached hereto as Appendix A.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 5209

WISCONSIN ELECTRIC POWER

COMPANY,

Respondent.

Appearances:

Edward A. Bobrick, Esq., of

Chicago, Illinois, for the

Secretary

T. Michael Bolger, Esq., of

Milwaukee, Wisconsin, for the

Respondent

BEN D. WORCESTER, Judge, OSHRC

This proceeding arises pursuant to a notice of contest filed by the Respondent, on

October 23, 1973, under the provisions of Section 10(c) of the Occupational Safety and Health

Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On October

4, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the

Act and 29 CFR 1926.955(a)(6)(ii). After a pre-trial conference in Milwaukee, Wisconsin, on

February 20, 1974, it was agreed that the matter would be submitted on a stipulation of facts and

briefs. The stipulation was filed on June 14, 1974. Issues were joined and the matter became

ready for adjudication with the filing of reply briefs on July 29, 1974.

It was stipulated that the Respondent is a Wisconsin corporation engaged in the

manufacture, distribution and maintenance of lines and systems for the distribution of electric

power and that, at all times relevant to this proceeding, was an employer operating a business

affecting commerce within the meaning of the Act. The Respondent is alleged to have committed

the violation described in the citation and complaint on September 5, 1973.

On the date of the alleged violation a line crew which included Crew Foreman William

Bichinich and linemen Paul Yopps and (redacted) had proceeded to a site near Springdale Road

and Doral Road, Brookfield, Wisconsin, where the Respondent’s existing facilities were

undergoing reconstruction. Their assigned task was to lift overhead high voltage electrical

primary wires from an old utility pole to a new pole. They had with them at the worksite an

electric line truck. This truck is the type used to transport men, tools, and material. It serves as a

traveling workshop for electric power line construction and maintenance work. This truck was

equipped with a boom and auxiliary equipment for setting poles, digging holes and elevating

material or men. It also had a trailer attached to it. There was a fibre glass extension on the boom

for the purpose of preventing the truck from becoming energized if the boom should touch an

energized high voltage line.

The crew also had a bucket truck which was equipped with an articulated boom for lifting

men and material. These two trucks were positioned near the two poles.

Neither of the trucks was grounded. Each of the men was equipped with a hard hat, safety

glasses, rubber gloves and rubber sleeves. At a foreman’s meeting on August 21, 1973, the

Respondent’s safety rules were discussed. The Crew Foreman, Bichinich, also received this

information at an ‘Inclement Weather Meeting’ on August 23, 1973. The Respondent’s Safety

Manual requires the wearing of protective equipment whenever a workman should come within

4 feet of objects which are or may become energized. On September 5, 1973, Bichinich and

Yopps were wearing this equipment but the record is silent as to whether (redacted) was wearing

it.

Under the direction of the crew foreman, Yopps was elevated by the bucket truck to a

position where he could reach the power line. The crew foreman ordered (redacted), who had

remained on the ground near the trailer hitched to the line truck, not to get close to this

equipment. There was no response from (redacted) who was then approximately 10 feet away

from the trailer. Yopps then placed two line hoses (a type of rubber insulation) over the

energized primary line and fastened a ridge pin to the pole. The foreman, using the controls on

Ex. 1-OSHA Directive No. 3.

Ex. 13-Personal Injury Accident Report, page 2A.

Ex. 2- Safety Manual, page 318.

29 CFR 1926.951(a).

the line truck, elevated the boom to a position where Yopps could reach the hook hanging from

the boom winch line. After untying the energized line he placed it in the hook. The foreman

proceeded to raise the wire by means of the winch line, boom and stringer. He was assisted by

Yopps guiding the line from the bucket. When Yopps noticed that the line was getting close to

the boom he shouted a warning to the foreman. As he was making a temporary tie he heard an

arcing sound. When he looked down he saw that (redacted), who was then near the front of the

trailer, fall to the ground. He and Bichinich attempted to aid him, but their efforts were

ineffective. After being transported to a hospital he was pronounced dead.

A post accident investigation revealed that there were burn marks on the overhead line at

a point 120 inches from the cross area, just beyond the end of the two line hoses Yopps had

installed. The Respondent’s accident investigation committee was of the unanimous opinion that

contact had been made from the upper part of the stringer in the area of the locking pin on the

boom of the line truck which caused it to become energized.

The evidence shows conclusively that if the Respondent’s safety rules had been followed

to the letter, the line truck would not have become energized. Either Yopps did not install the

line hose properly; he did not warn the foreman promptly when the boom neared the primary

line; Bichinich was carelessly operating the boom; or perhaps it was a combination of all three of

these acts of the employees. In any event it is clear that the tragic accident which ensued was the

ratural, logical and probable result of the carelessness of the crew foreman and Yopps.

After the Complainant’s compliance officer investigated this incident on September 7,

1973, the Respondent was charged with a violation of subparagraph (6)(ii) of 29 CFR

1926.955(a), Subpart V—Power Transmission and Distribution, Construction Standards. The

relevant paragraphs are:

‘1926.955—OVERHEAD LINES

(a) Overhead lines

(1) When working on or with overhead lines the provisions of subparagraphs (2)

through (8) of this paragraph shall be complied with in addition to other

applicable provisions of this subpart.

(2) Prior to climbing poles, ladders, scaffolds, or other elevated structures, an

inspection shall be made to determine that the structures are capable of sustaining

the additional or unbalanced stresses to which they will be subjected.

Ex. 13- page 2B.

(3) Where poles or structures may be unsafe for climbing, they shall not be

climbed until made safe by guying, bracing, or other adequate means.

(4) Before installing or removing wire or cable, strains to which poles and

structures will be subjected shall be considered and necessary action taken to

prevent failure of supporting structures.

(5)

(i) When setting, moving, or removing poles using cranes, derricks, gin poles, A-

frames, or other mechanized equipment near energized lines or equipment,

precautions shall be taken to avoid contact with energized lines or equipment,

except in bare-hand live-line work, or where barriers or protective devices are

used.

(ii) Equipment and machinery operating adjacent to energized lines or equipment

shall comply with § 1926.952(c)(2).

(6)

(i) Unless using suitable protective equipment for the voltage involved,

employees standing on the ground shall avoid contracting equipment or

machinery working adjacent to energized lines or equipment.

(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.’

The citation described the alleged violation in the following manner:

‘Employer failed to bond the boom truck to an effective ground or consider it

energized and barricade it.’

The Respondent has noted that the citation required immediate abatement. This portion of

the citation is in conflict with 29 U.S.C. 658(a) (See Secretary of Labor v. Matthews and Fritts,

Inc., OSHRC Docket No. 3998, —— OSAHRC —— (August 13, 1974); Secretary of Labor v.

Kesler and Sons Construction Co., OSHRC Docket No. 306, —— OSAHRC —— (July 8,

1974)), and thus void and of no effect.

The Respondent contested both the citation and the proposed penalty of $600.00 on the

ground that the standard relied upon by the Secretary is either inapplicable or, if applicable, so

vaguely worded and confusingly juxtapositioned in the standards that the Respondent could not

have reasonably foreseen its applicability. Neither of these contentions is meritorious. The first

five paragraphs of Section 1926.555(a) cover only those safety measures pertaining to climbing

poles, ladders, and scaffolds; the need for guying or bracing; the stresses poles will be subjected

to; and the setting, moving, or removing of poles. Subparagraph (6)(ii) discusses lifting

equipment and its use near energized lines. This is clear. There is no ambiguity. It is shown by

the evidence that both the foreman and supervisory personnel at higher level knew what was

required under the circumstances.

The description of the alleged violation in the complaint was essentially the same as in

the citation. The complaint alleged that:

‘When working on or with overhead lines, respondent failed to bond the lifting

equipment (i.e., the boom truck) to an effective ground or consider it energized

and barricade it. [(29 CFR 1926.955(a)(6)(ii)] (Item 1 of the Citation).’

In its answer the Respondent conceded that its employees did not bond the line truck and

trailer in use to an effective ground or barricade even though the evidence shows that an attempt

was made to barricade. It was asserted affirmatively that its employees had been issued orders to

comply with the clearance requirements of 29 CFR 1926.952(c) and that they had been

instructed not to operate mechanical equipment closer to any energized line or equipment than

the clearances set forth in Section 1926.950(c) unless either a barricade or other means was

utilized to protect its employees from direct contact with energized lines or equipment. It was

asserted that the Respondent’s employees did install an insulated barrier between the energized

line and the mechanical equipment, and that the line hose on the east wire and insulation

between the energized line and the boom of the line truck fulfilled the Respondent’s duty.

It is well settled that a law which is so vague that it leaves the public uncertain as to the

conduct it prohibits is unenforceable. See Grayned v. City of Rockford, 92 S. Ct. 2294, 2298

(1972); Giaccio v. State of Pennsylvania, 86 S. Ct. 518, 521 (1966). The facts, as stipulated,

show that even the Respondent’s foreman knew what he needed to do to protect himself and his

crew while lifting an energized line from an old pole to a new one through the use of a line truck

equipped with a boom. However, both the Secretary and the Respondent in their respective

arguments have overlooked the fact that the Act has a preventive objective. It is unlike

workmen’s compensation laws whose purpose is reimbursement of employees and their

dependents for losses due to injury, illness or death which was the direct result of a past event

Answer, Par. 2.

7 Stipulation of Facts, Page 9.

occurring in the course of employment. The Occupational Safety and Health Act of 1970, is

intended to be applied prospectively, not retrospectively.

The death of the lineman, (redacted), is immaterial to the issue in the instant case. The

energizing of the electric line truck and trailer which Crew Foreman Bichinich was handling

would have occurred when he allowed the uninsulated portion of the boom to touch an

unbarricaded portion of the energized line even if (redacted) had not been present. The evidence

shows that both Bichinich and Yopps were fully aware of the hazard to their own safety if they

didn’t bond the equipment or barricade it. They were not deceived by any ambiguity of

standards. The Respondent has not been deceived. It is clear that its foreman’s performance of

his duties was marked by carelessness in the manner in which he performed his own functions

and in the supervision of the lineman. As a result an accidental death occurred. This event

precipitated the OSHA investigation which resulted in the citation. Being unable to deny the

accidental death, the Respondent, for its defense, relies upon the contention that either the wrong

standard was cited or that the standard is vague. Both arguments are unsound. It is clear that 29

CFR 1926.955(a)(6)(ii) is applicable to the facts disclosed by the investigation of the incident

which occurred on September 5, 1973 and that the Respondent’s foreman failed to adhere to its

safety rules, but it doesn’t follow that a violation occurred.

The Respondent has prepared and issued to its employees written rules and instructions in

an effort to comply with the provisions of the Act. The Respondent also conducted a very

comprehensive investigation of the accident. As far as the record reveals, the Respondent has

done everything within its power to see that all of the requirements of the safety and health

standards and the Act are met.

The only question to be resolved under those circumstances is whether an employer can

be found to have committed a violation due to a supervisor’s inept or negligent performance of

safety precautions.

The Respondent says that the instant case should be a relatively simple matter turning on

the question whether the employer failed to exercise its duty to oversee its employees in the field

after thoroughly instructing them on compliance with safety matters. It is.

Ex. 13 Personal Injury Accident Report page 4.

Exs. 1 and 2.

Ex. 3-13 inclusive.

The standard cited provides for two methods of protecting electric utility employees

using lifting equipment near energized lines. The equipment may be grounded, or it may be

barricaded by using insulated covers which prevent contact with that portion of the equipment

which is a conductor of electricity. The crew foreman chose to barricade, but the lineman Yopps

who was assisting him did not install the barricade efficiently. The crew foreman also failed to

notice that he was guiding the boom too close to an exposed section of the energized line. The

result was instantaneous energizing of the line truck and trailer.

It is clear that the Respondent’s supervisory employee in charge, Crew Foreman

Bichinich, knew that barricading was necessary. The Respondent is charged with notice that

these precautions were required by 29 CFR 1926.955(a)(6)(ii). Its foreman, by his actions,

showed that he knew that the primary line had to be barricaded. An employer subject to the

provisions of the Act is responsible for the acts of a foreman performed in his supervisory

capacity, Secretary v. Maher Distribution Center, OSHRC Docket No. 981 —— OSAHRC ——

(1972); Secretary v. John T. Clark & Son of Maryland, Inc., OSHRC Docket No. 1136 ——

OSAHRC —— (1972); Secretary v. Cameron Brothers Construction Co., Inc., OSHRC Docket

No. 2266, —— OSAHRC —— (1972).

It doesn’t follow that an employer whose supervisor has failed to adhere to the

requirements of the standards can be charged with a violation. It must be shown that either the

employer had knowledge of the violation or that the employer made no effort to see that there

was compliance. Congress did not intend to impose strict liability upon employers. There is no

requirement that each employee be constantly watched. A hazardous condition which resulted

from acts of a foreman in which he failed to comply with both company rules and the standard is

something over which an employer has no control. An employer cannot be charged with a

violation under those circumstances. See Secretary of Labor v. Hanovia Lamp Division, Canrad

Precision Industries, No. 73–1131, U.S. Court of Appeals, 3rd Cir. (August 14, 1974).

Employers cannot be held liable as insurors. Secretary of Labor v. Clements Paper Co., 1

OSAHRC 574 (1972). An employer cannot be held to the strict standard of being an absolute

guarantor that his employees will obey all of the Secretary’s standards at all times. Secretary of

Labor v. Standard Glass Co., Inc., 1 OSAHRC 594 (1972). An employer cannot be charged with

a violation unless he had knowledge of the act, or his failure to act, or affirmative conduct,

contributed to its commission. Secretary of Labor v. Intermountain Block Co., 1 OSAHRC 455

(1972).

FINDINGS OF FACT

1. The Respondent is an electric power producer and distributor in the State of

Wisconsin, the state in which it is incorporated. It has many employees and manufactures a

product which is distributed through interstate commerce.

2. On September 5, 1973, at a location adjacent to Springdale Road and Doral Road,

Brookfield, Wisconsin, while engaged in the reconstruction of its overhead lines, the

Respondent’s crew foreman, Bichinich, while operating the boom on a line truck and its lineman,

Yopps, while elevated in the bucket of a bucket truck to the height of the primary electrical

wires, in violation of company rules, so carelessly operated the boom and so inadequately

barricaded the high energy line that the line truck and trailer became energized.

3. The Respondent did not know that its lineman and crew foreman had neither grounded

nor effectively barricaded the high energy line nor could the Respondent have reasonably

anticipated that they would leave a part of the line uncovered.

4. The Respondent has in force an ‘OSHRC Directive No. 3’ and a Safety Manual and

has adequately trained its personnel so that it would be reasonable to conclude, and it is so found,

that the crew foreman knew what compliance with 29 CFR 1910.955(a)(6)(ii) required.

5. The Respondent’s Directive No. 3 indicates that the terms ‘Derrick truck’ and ‘Electric

Line Truck’ mean the same thing. It states that an operator of a line truck boom must maintain

the section of fibre glass insulation below the lowest energized part at a distance specified in the

clearance table. The Respondent’s OSHA Directive No. 3 states at Page Two of Subpart V:

‘If operating equipment closer than the above clearances, one of the following

procedures must be used:

(2) Insulated Barriers

Insulated barriers, such as pole guards, line hoses, hoods and other protective

devices, can be installed to provide adequate protection.

It is the responsibility of the Crew Foreman and operator to be sure that the

insulated barriers will extend beyond the boom work area far enough to prevent

possible contact of the boom with energized parts.

Ex. 1- Page Two.

(3) Grounding Vehicles

Grounding of the trucks can be accomplished by connecting a ‘ground lead’ from

the truck to ground . . .’

It is clear beyond question that the Respondent understood the requirements of 29 CFR

1926.955(a)(6)(ii). If the crew foreman had followed the requirements of the Respondent’s

OSHA Directive No. 3 the line truck and trailer would not have been energized.

CONCLUSIONS OF LAW

1. The Respondent is and was at all times relevant to this proceeding an employer

engaged in commerce within the meaning of the Occupational Safety and Health Act of 1970

subject to the jurisdiction of this Commission.

2. 29 CFR 1926.955(a)(6)(ii) is not vague, arbitrary and confusing. It is plainly and

unambiguously stated therein that an employer engaged in the construction and maintenance of

overhead high energy electric lines is required to provide means for preventing employees

handling them from touching a conductor, whether the vehicle they are using to lift the energized

lines is called a derrick truck or an electric line truck. 29 CFR 1926.955(a)(6)(ii) is not vague,

arbitrary and confusing so as to deprive the Respondent of due process of law and equal

protection of the law.

3. Although 29 CFR 1926.955(a)(6)(ii) is a valid, duly promulgated, and enforceable

standard which the Respondent and all other employees must comply with, the Complainant has

failed to sustain the burden of proof that the Respondent violated this standard as alleged in the

Citation and Complaint. Where an employer’s supervisor willfully and wantonly violates a

standard, the employer can be held to be responsible for the violation; but where a supervisory

employee attempts to comply with a standard but performs both his supervisory and physical

tasks so ineptly that he and other employees are exposed to the precise hazard the regulation was

intended to eliminate, the employer cannot be charged with a violation. The Act is a remedial

one. It should be liberally construed in light of its purpose; but it would be a denial of due

process of law to hold an employer responsible for every act of a supervisory employee which is

less than perfect.

Secretary v. Ocean Electric Co. OSAHRC Docket No. 5811, __________OSAHRC

__________(1974).

ORDER

It is therefore hereby ORDERED, based upon the record as a whole, that the citation and

proposed penalty of $600.00 be vacated and that this proceeding be dismissed.

BEN D. WORCESTER

Judge, OSHRC

Dated: October 15, 1974

Washington, D.C.