“Docket No. 88-2912-S SECRETARY OF LABOR,Complainant.v.BAYTOWN CONSTRUCTION COMPANY, INC.,Respondent.OSHRC Docket No. 88-2912-SDECISIONBefore: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Bayton Construction Company (\”Baytown\”) is aconstruction and pipe-laying company headquartered in Nederland, Texas. Following theinvestigation of a fatality at one of its workplaces, the Occupational Safety and HealthAdministration (\”OSHA\”) issued Baytown a citation alleging a serious violationof 29 C.F.R. ? 1910.180(j)(1)(i),[[1]] for its failure to maintain at least 10 feet ofclearance between a truck crane and powerline. The Secretary proposed a penalty of $640for this violation.[[2]] Review Commission Administrative Law Judge Louis G. LaVecchiaaffirmed the citation as serious and assessed the $640 penalty. For the reasons set forthbelow, we affirm a serious violation and assess a penalty of $640.I. BackgroundOn October 27, 1988, four of Bayton’s employees were movingpipe of various sizes from its pipefitting shop to an empty lot it had rented across thestreet. The pipe was loaded onto the back of a flatbed trailer and then driven across thestreet, where employees, using a truck crane, unloaded the pipe and placed it on skids. A7620-volt powerline, stung approximately 20 feet above the ground, ran across the back ofthe property.The truck crane used to unload the pipe had a 30-foot boom. Thecrane’s cab permitted visibility straight ahead or from its open sides. However, theplastic window at the top of the cab was opaque, so that the crane operator effectivelyhad no overhead vision. Thus, The operator could not see an overhead powerline duringnormal operation \”unless he leaned outside the cab and looked up.\”At approximately 1:30p.m., employees Jerry Mitcham, [[3]] BryanShoemaker, Larry Marse, and Robert Tatum began unloading a second load of pipe from thetruck. Mitcham was the foreman, Shoemaker was a \”shop laborer,\” and Marse andTatum were laborers who had been employed by Baytown for approximately one week. Mitchamoperated the truck crane to hoist the pipe, while Marse and Shoemaker stood on the flatbedtrailer and connected the pipe on the trailer to the cable on the crane. After the pipewas connected, the crane would pick up the pipe and swing it towards the skids on theground. Tatum then directed and positioned the pipe while it was being lowered onto theskids and unhooked the pipe from the cable when the pipe was on the ground. OSHACompliance Officer Russ Elveston testified that Mitcham told Tatum had not received anysuch instruction. Marse stated that none of the laborers was paying attention to thecrane’s distance from the powerline because \”[i]t was 2:00 in the day and we werefixing to get off work in about another hour.\” Marse, Tatum, and Shoemaker had neverreceived training concerning the operation of cranes around powerlines. Marse alsotestified that Tatum did not give any warnings to Mitcham regarding the distance of thecrane from the powerline that afternoon.While the employees were unloading the second load of pipe, thetruck crane’s cable became energized by the overhead powerline. The cable in turnenergized the attached pipe, which transmitted the electricity to Tatum, who waselectrocuted. Although no one actually witnessed Tatum’s electrocution, Marse testifiedthat he heard the transformer \”pop\” and also heard Tatum yell; he then looked upand saw the electricity knock Tatum off the pipe. Shoemaker saw Mitcham \”yell forhelp and run off.\” Marse and Shoemaker then ran to help Tatum. During the employees’efforts to save Tatum, Marse saw the pipe swing and bring the cable into contact with thepowerline, causing the transformer to \”pop\” a second time. Shoemaker could notdetermine if the crane was within ten feet of the powerline because\”we were lookinginto the sun.\”[[4]]The truck crane was left in this position, touching theenergized powerline, until a Gulf States Utilities (\”Gulf States\”) employee,Steve Winckler, arrived at the scene to deenergize the powerline some time later. Wincklertestified that he saw the boom against the wire and heard the line \”buzzing\”from the contact. he also stated that Baytown’s employees told him that the crane had notbeen moved since the accident because the power wire was still touching the boom and\”buzzing.\”Four days after the accident, Compliance Officer Elvestoninspected the workplace and interviewed several witnesses about the circumstances leadingup to the fatality. Elveston testified that the truck crane’s boom was fully extended andon the ground parallel to the powerline, with \”fresh burn marks\” on the wirerope approximately one foot below the boom at the end of the crane. He also noted thatseveral strands of the wire rope were completely burned through. As a result of Elveston’sinvestigation, OSHA issued a citation to Baytown alleging that it committed a seriousviolation of 29 C.F.R. ? 1910.180(j)(1)(i) by failing to maintain at least 10 feet ofclearance between the truck crane and the 7620-volt powerline.II. DiscussionA. Whether the Administrative Law Judge erred in denyingBaytown’s January 19, 1990 Motion for Continuance.A hearing was initially set for September 26. 1989. It wascontinued twice: first to December 20, 1989, then to January 23, 1990. On Friday, January19, 1990, four days before the hearing. Baytown’s counsel moved for a third continuance,citing a conflicting courtroom obligation in the District Court of Texas in Galveston. Insupport of its motion, Baytown asserted that three of its witnesses, as well as its leadcounsel, would be required to appear for trial on January 22, 1990 in Galveston. Itfurther asserted that it had requested a continuance in the Galveston case as well. Butthat the request had been denied. Judge LaVecchia denied the motion.At the January 23 hearing, Baytown’s counsel asked the judge toreconsider his denial of its motion. The judge again denied the motion, but informedBaytown that they would \”go as far as we can today\” with the available witnessesand then \”reschedule the rest of the case for further hearing at some date whichmight be satisfactory to all the parties\” in order to take testimony from theremaining witnesses. The attorney for Baytown objected, claiming that \”the damagewill already be done to Baytown Construction.\”On review, Baytown argues that its attorney of record, KerwinB. Stone, ‘was unexpectedly notified that he and Respondent’s key [managerial] personnelwould have to appear in Galveston County for trial during the week of January 22,1990.\” As a result of the judge’s failure to grant a continuance, Baytown argues thatits \”attorney of record was denied the opportunity to take advantage of his researchand extensive preparation because he was denied the opportunity to be present at the OSHAtrial.\” Baytown also argues that \”three key personnel\”–the president,operations manager, and safety director of Baytown-would have made \”valuable input atthe OSHA trial-not only through testimony, but also through consultation and developmentof strategy with Respondent’s attorney during the OSHA trial.\” As a result, Baytownclaims the denial of its motion for continuance is an abuse of discretion by the judgewhich \”deprived [Baytown] of due process of law and a fair trial.\”The Secretary responds by arguing that, contrary to Baytown’sclaim its corporate officers could have been present. The Secretary cites a letter fromthe judge of the district court in Galveston which states that the case was settled onJanuary 22 and that no proceedings took place on January 23.[[5]] In addition, theSecretary argues \”Baytown cannot complain of the lack of testimony from witnesseswhen its own counsel declined an additional hearing precisely for the purpose of gatheringthat testimony.\” As a result the Secretary claims that Baytown failed to prove thatit was prejudiced by the judge’s failure to grant the continuance.In its reply brief, Baytown argues that its counsel andwitnesses remained in Galveston because its counsel believed that they were required to.Baytown notes that a letter and docket sheet attached to the Secretary’s brief, used bythe Secretary to support her argument that the Galveston hearing had concluded on theprior day, are not part of the record of the trial.ii.The decision to grant or deny a continuance is a matter for thesound discretion of the trial judge. Harmon v. Grande Tire Co., 821 F.2d 252, 256(5th Cir. M); Harvey V. Andrist, 754 F.2d 569, 572 (5th Cir.), cerr. denied,471 U.S. 1126 (1985). Baytown claims that the judge’s denial of the continuance violatedits due process rights. In Ungar v. Sarafire, 376 U.S. 575, 589 (1964), theSupreme Court held that \”[t]here are no mechanical tests for deciding when a denialof a continuance is so arbitrary as to violate due process. The answer must be found inthe circumstances presented in every case, particularly in the reasons presented to thetrial judge at the time the request is denied.\”Baytown complains that its attorney of record was \”‘deniedthe opportunity\” to participate in the hearing and that Baytown was denied thebenefit of his expertise. However, a Party in a lawsuit does not have an absolute right toany counsel he desires. Wynn v. Eriksson, 889 F.2d 644, 646 (5th Cir. 1989)(FifthCircuit does not recognize a constitutional right of counsel of choice in civillitigation). \”Even where the desired counsel possesses special expertise, a courtmay, consistent with due process, refuse a continuance to accommodate counsel’s trialschedules.\” Hodge v. Hodge, 507 F.2d 87, 90 n.10 (3d Cir. 1975).Baytown further claims that the judge abused his discretion innot granting a continuance so that the missing corporate representatives could testify atthe hearing and assist Its counsel in developing trial strategy during the hearing.[[6]]To establish that the judge. abused his discretion, Baytown \”must demonstrate thatthe denial of a continuance severely prejudiced\” it. United States v. Shaw. 920F.2d 1225, 1230 (5th Cir. 1991). However, Baytown has failed to make any showing ofprejudice resulting from the absence of its witnesses. See Johnston v. Harris CountyFlood Control Dist., 869 F.2d 1565, 1571-72 (5th Cir. 1989)(no abuse of discretion innot granting a motion for continuance in part because moving party had not shown thatrelying on the assistance of other defendants when one defendant could not attend createdany prejudice). It has not even suggested what testimony these witnesses would have givenat the hearing. Baytown also failed to accept the judge’s reasonable offer to schedule anadditional hearing \”at some date which might be satisfactory to all the parties\”in order to obtain the testimony of the absent witnesses. Based on then factors, weconclude that the judge did not abuse his discretion in denying Baytown’s Motion forContinuance.B. Whether the Administrative Law Judge erred in rulingthat Baytown violated 29 C.F.R ? 1910.180(j)(1)(i) when its crane was operated so as tocome within 10 feet of a powerline rated 50 kv. or below?i. In addition to relying on the circumstances of the accident toprove that Baytown allowed its crane to come closer than 10 feet to the powerline, theSecretary also relied on the testimony of Robert Summers, a claims director at Gulf Stateswho has worked there for 40 years, and qualified as an expert without objection. Summerstestified that a 7620-volt powerline cannot arc over distances greater than half an inch.Even allowing a slight additional margin of protection for weather conditions, Summersstated that Gulf States sets gaps of five-eighths of an inch between its 7620-voltpowerlines and its ground wires to protect its equipment from lightning, a gap adequate toprevent the lines\” arcing at that voltage.Baytown argues that the evidence presented was insufficient tosupport the charge against it. It contends that the Judge’s reliance upon ComplianceOfficer Elveston’s testimony is misplaced because he \”could not even remember whatyear he performed the investigation\” nor \”remember the names of the personnelwhom he interviewed concerning the accident.\” Although Baytown admits that\”simplified proceedings were requested,\” it argues that \”[t]he Judge hasabused his discretion by relying so heavily on the hearsay testimony of the complianceofficer.\”[[7]] Baytown argues that \”[n]o witness testified and no credibleevidence was presented to show that the crane was operated within ten feet of the wires ator before the time of the accident.\” It further claims that the judge’s reliance onpast opinions by the Commission discussing the physics of electricity is \”an abuse ofdiscretion.\”Baytown argues that the absence of its own experttestimony–due, it claims, to the exclusion of its attorney of record and principalwitnesses turn the hearing–is immaterial because \”the Secretary failed to carry itsown burden of proof by presenting competent testimony to even raise an issue.\”Baytown insists that Winckler, the Gulf States serviceman who was called to the accidentto cut power to the wire, \”is tainted with bias and prejudice in favor of theelectric company which employs him\” because Gulf States is involved in a third partylawsuit brought by the decedent’s heirs. Baytown makes the same argument against Summers,the Secretary’s expert witness who also works for Gulf States.The Secretary responds that \”[t]he judge correctly foundthat the crane had been operated within ten feet of the 7620-volt powerline, and was alsocorrect in noting that ‘no other plausible explanation’ for the accident could beadvanced.\” She notes the expert testimony at the hearing and in previous Commissiondecisions, establishing that electricity from a 7620-volt line cannot arc over distancesgreater than half an inch. Thus, she concludes, for Baytown’s crane to have becomeenergized it must have come within half an inch of the powerline.As to Baytown’s argument that no credible testimony establishesthe contact of the crane with the powerline, the Secretary argues that \”because thearcing distance of electricity is a fact derived from principles of physics, no eyewitnesstestimony is needed to establish it, just as no eyewitness testimony would be needed toestablish the law of gravity.\” The Secretary notes that there are three directobservations which support the argument that the crane came into contact with thepowerline: Marse testified that he heard a \”pop\” when the accident occurred andheard it again when he actually saw the crane touch the wire; the Gulf States servicemansaw the crane touching the powerline, and was told it had not been moved since theaccident; and the compliance officer saw burn marks on the crane cable from electricalheat so intense that it melted some of the wires.ii.The judge found that Marse’s and Shoemaker’s testimony thatthey heard loud \”pops\” during the accident supported the conclusion that thecrane or its load contacted the line twice: once when Tatum was electrocuted and againafter the accident. The judge further relied on Danco Constr. Co. v. OSHRC, 586F.2d 1243 (8th Cir, 1978), aff’g 5 BNA OSHC 2043, 1977-78 CCH OSHD ?22,280 (No. 1-1847,1977). In Danco, OSHA cited the employer for operating a crane within ten feet ofan energized powerline in violation of 29 C.F.R. ? 1926.550(a)(15)(i), after twoemployees handling a section of pipe attached to a crane’s boom were injured, one fatally,when the boom contacted overhead powerlines. The Eighth Circuit noted that although it wasnot established whether the crane actually touched the electric lines or merely camesufficiently close to allow the electricity to arc from the lines to the boom, there wassufficient evidence to support the Commission’s finding that the boom came within at leastten feet of the lines in violation of the standard. Id. at 1244, n.3.We agree with the judge’s reasoning. The loud pops heard by theemployee witnesses, the testimony that the crane contacted the powerline after theaccident, the burn marks on the crane cable and the expert testimony that electricity ofthis voltage arcs no more than half an inch all clearly establish that Baytown failed tocomply with the cited standard by permitting its crane to come within 10 feet of apowerline containing less than 50,000 volts.Baytown claims that Winckler and Summers were biased againstit, but it has not disputed the testimony of either witness or claimed that it wasinaccurate. Nor has Baytown advanced a theory of the accident that is at odds with thatsuggested by Summers’ testimony. In the circumstances, we can only conclude that, assumingargundo, if we were to find some merit to Baytown’s allegations, it would not affect ourfinding that Baytown was not in compliance. We therefore find that Baytown failed tocomply with section 1910.180(j)(1)(i).C. Whether Baytown established that the violation of 29 C.F.R. ? 1910.180(j)(1)(i)was a result of the unpreventable employee misconduct on the part of the crane operator?i.By claiming that the Violation resulted from unpreventableemployee misconduct, Baytown seeks to rebut the Secretary’s prima facie showing ofknowledge. The Secretary made that showing here by establishing Baytown’s foremanMitcham’s participation in and knowledge of the violation. Such knowledge is imputable toBaytown unless Baytown can rebut that showing by demonstrating that the foreman’s failureto follow proper procedures was unpreventable. Consolidated Freightways Corp., 15BNA OSHC 1317, 1321, 1991 CCH OSHD ?29,500, pp. 39,809-10 (No. 86-351, 1991). Inparticular, Baytown must establish that it had relevant work rules that it adequatelycommunicated and effectively enforced. Id. See also H. B. Zachry Co. v. OSHRC,638 F-2d 812, 818 (5th Cir. 1981). Evidence that a supervisor was involved in themisconduct is strong evidence that the employer’s safety program was lax. DanielConstr. Co., 10 BNA OSHC 1549, 1552 1982 CCH OSHD 126,027, p. 32,672 (No. 16265,1982).The judge concluded that Baytown did not actually make an\”unpreventable employee misconduct\” defense, but that even if it had, it failedbecause it did not show that it took all reasonable precautions to prevent the violation.We conclude that the judge was correct. Baytown’s safety program consisted principally ofsafety meetings held regularly once every three weeks. Crane operator Mitcham had signedthe attendance list at a September 1988 meeting that covered the necessity of maintaininga 10-foot distance from powerlines during crane operation. Mitcham had also attended aJuly 1987 meeting that addressed the need to use \”spotters,\” or signal men onthe ground, when handling and loading pipes. After the accident, the compliance officertestified that Mitcham told him that \”while he had some training, he did not recallany specifics about distances and voltages\” but that he should \”basically…keepthe crane out of the powerline.\” The compliance officer further testified thatMitcham said that he told Tatum to watch the powerline and to help move the pipe intoposition. Marse and Tatum, who had been hired approximately one week before the accident,had never been to one of Baytown’s regular safety meetings, and had not received trainingconcerning cranes, powerlines, or the responsibilities of a spotter. Their only safetytraining consisted of general admonitions to wear hardhats and gloves, and keep theirhands out of pipes. Also, Shoemaker had never been instructed about cranes and powerlines.ii.Although Baytown had a safety Program and work rules requiringcranes to maintain. A minimum of ten feet clearance from energized powerlines, theevidence demonstrates that the rules were inadequately communicated. Of the four employeeswho were working with the truck crane, only the foreman, Mitcham, had received trainingconcerning cranes, powerlines, or when to use a spotter. Despite this training, evenMitcham only remembered to \”basically … keep the crane out of the powerline.\”We therefore conclude that Baytown failed to establish that the violation of 29 C.F.R.?1910.180(j)(1)(i) was the result of unpreventable employee misconduct.Ill. PenaltyBased on the penalty factors enumerated in section 17(j), 29U.S.C. ? 666(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678,we find that the $640 penalty proposed by the Secretary is appropriate.IV.OrderAccordingly, we affirm the serious violation of section1910.180(j)(1)(i) and assess a penalty of $640.Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: June 18, 1992SECRETARY OF LABOR,Complainant,v.BAYTOWN CONSTRUCTION COMPANY, INC.,Respondent.OSHRC Docket No. 88-2912-SAPPEARANCES:Jerome Kearney, Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Dallas, Texas\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For the Complainant.Kerwin B. Stone, Esquire Tom, Folse, EsquireBeaumont, TexasFor the Respondent.DECISION AND ORDERLAVECCHIA, Judge:This is a proceeding brought before the Occupational Safety andHealth Review Commission (\”the Commission\”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq (\”the Act\”).Respondent contests an alleged serious violation of 29 C.F.R. 1910.180(j)(1)(i), for whicha penalty of $640.00 was proposed, and an alleged \”other than serious\” violationof 29 C.F.R. 1910.180(i)(5)(i), for which no penalty was proposed.OSHA conducted an investigation of Respondent’s worksite atNederland, Texas on October 31, 1988 after a fatal accident which occurred on October 27,1988. As a result of the investigation, OSHA issued the two aforementioned citations onNovember 29, 1983. Respondent timely contested the subject citations an, requestedsimplified proceedings. No additional persons desired to intervene in this matter.The Secretary alleged that Respondent failed to comply with 29C.F.R. 1910.180(j)(1)(i) as follows:A minimum clearance of 10 feet was not maintained betweenpart(s) of truck crane(s) or load(s) and energized electric power lines rated 50 kv. orbelow which were not protected by insulating barriers:In the Pipe Yard where the truck crane (Cherry Picker), #3792,was operated well within 10 feet of the 7620 volt power line while unloading pipe from atrailer, at which time a fatal accident did occur on or about October 27, 1988.The Secretary also alleged a violation of 29 C.F.R.1910.180(i)(5)(i) as follows:A carbon dioxide, dry chemical, or equivalent fire extinguisherwas not kept in the cab or the vicinity of the truck cranes:In the truck crane (Cherry Picker ID #3792) located in the PipeYard.Because the evidence did not sustain a finding of a violationof 29 C.F.R. 1910.180(1)(5)(1), that citation was dismissed at the hearing. Discussion ofthe alleged violation of 29 C.F.R. 1910.180(j)(1)(i) follows.The EvidenceRuss Elveston testified. He is a compliance officer with 12years of OSHA experience, a bachelor’s degree in electrical engineering and a master’sdegree in engineering.His investigation revealed that at the time of the accident, four of Respondent’semployees were engaged in a pipe-unloading project. Foreman Jerry Mitcham was operatingwas operating Respondent’s cherry-picker crane in close proximity to an approximately7,000 volt power line which ran along the back of the worksite. Larry Marse and BryanShoemaker were on a trailer connecting pipe to a wire spreader that was attached to thecrane. The crane swung the pipe over to \”skids\” on the ground where MichaelTatum directed and positioned the pipe. Mitcham apparently also told Tatum to watch theoverhead power lines. As the crane swung the pipe over to the skids, it contacted a powerline. The current passed through the crane’s wire rope and electrocuted Tatum as hehandled the pipe. (Tr. 12, 17-19, 27).When Elveston inspected the site, he saw the crane with itsboom laid down parallel to the power lines. His measurement of the crane’s boom showedthat it was approximately 30 feet long, and a measurement taken from the nearest powerline to the crane itself was approximately 20 feet. The boom had not been retracted sincethe accident. Elveston took Exhibit C-5, which showed the fresh burn marks he observed onthe crane cables during his inspection; the marks indicated a high-voltage burn. He alsotook Exhibit C-4, which showed the opaque window at the top of the crane’s cab. Because ofthe window’s poor visibility, the operator could not have seen the power lines through thewindow; he would have had to lean out of the cab to see the lines. (Tr. 12, 14-16, 24-25).Marse and Shoemaker told Elveston they had not received anyspecific information about maintaining distances between cranes and power lines. Mitchamtold Elveston that while he had some training about keeping cranes out of power lines, hedid not remember anything specific about distances and voltages. (Tr. 20).Elveston recommended the citation because his investigationindicated that Respondent’s crane had operated within ten feet of an energized electricline. He characterized the violation as serious because of the likelihood that contactwith the line would cause severe injury or death. (Tr. 17, 20-21).Steve Winckler testified. He is a first class serviceman,electrical trouble-shooter, with Gulf State Utilities (\”GSU\”). He received acall that Respondent’s crane was \”in the line and it was still hot.\” He went tothe site, saw the boom stuck in the wire and heard the line buzzing. He deenergized thepower line. Because the crane was still touching the wire, no one had moved the cranesince the accident; further, no one moved the crane while he was there. (Tr. 30-32,39-40).Larry Marse testified that at the time of the accident he andMichael Tatum had only been working for Respondent for one week; they were close friendsand had been hired on the same day. They were given general safety instructions, butreceived no instructions about maintaining distance between cranes and power lines. Sincethe accident, Marse has received training about cranes and power lines. (Tr. 41-45).Marse said Tatum was not a \”spotter\” on the day ofthe accident. Neither he nor Tatum warned Mitcham that the crane was getting too close tothe power lines because they were not paying attention to it. Marse heard Tatum yell; whenhe looked up, he saw the electricity throw Tatum from the pipe. He and Shoemaker ran toTatum and Shoemaker grabbed the pipe. Marse told Shoemaker to let go of the pipe; when hedid, the pipe swung into the power line and there was a loud pop. Marse said this was thesecond pop he heard, and that the load on the crane caused it to swing back and forth.Although Marse did not see the crane swing into the wire when Tatum was electrocuted, hesaid \”[i]t touched the wire second time.\” (Tr. 43, 45, 46-48).Robert Summers, the Secretary’s expert witness, testified thathe has been a claims director with GSU since 1976. He has worked for GSU for 40 years andworked his way up though the ranks to his present position. Because of his workexperience, he is familiar with the properties and dynamics of electricity. Since GSUowned the lines involved in the accident, Summers inspected the cite as part of GSU’sinvestigation. He said Exhibits C-1 and C-2 accurately depicted the lines at the site. Hedescribed the lines as a \”three-phase line,\” with three hot wires and a groundwire. The voltage between the ground wire and any hot wire was 7,620 volts, a standardvoltage, and the voltage between two hot wires was 13,200. (Tr. 49-52, 54, 56).Summers was familiar with the OSHA standard which forbidsoperating a crane within ton feet of an energized power line. He stated that arcing is aphenomenon that occurs when a grounded source, such as a crane, comes within a very smalldistance of an energized line and causes the electricity to \”arc\” or track fromthe hot wire to the ground source; the higher the voltage, the greater the potential forarcing. He said it is a \”known factor\” that a ground potential can get as closeas 1\/2\” to a 7,620 volt line before arcing will occur. Because weather conditionsmight make a very slight difference, GSU sets 5\/80\” \”gaps\” between its7,620 volt lines and its ground wires to protect it’s equipment from lightning. Weatherconditions can have a greater effect on arcing in very high voltage lines, such as a69,000 volt line. (Tr. 53-57).Summers testified that after having heard all of the testimonyabout the accident, he was convinced it was impossible for electricity from a 7,620 voltline to arc ton feet or even five feet. The only instances he had known electricity to arcas much as four or six feet were situations where the grounded source had actually hit apower line. In those cases, as the grounded source falls away from the line it draws anarc away from the line because of the ionization of the air. Summers said that if arcinghad occurred in this case, the intense shock that descendent received could have causedthe pipe to swing violently. (Tr. 52, 55-56, 58).Martha Shoemaker testified she was Respondent’s risk managerand bonding specialist, that she was familiar with Respondent’s safety programs and thatshe assisted Ann Blackwell, Respondent’s safety director, with safety seminars. Respondentholds safety meetings about every three weeks and notifies employees about the meetings.Respondent also gives safety seminars and invites its employees and supervisors.Respondent keeps records of the employees who attend safety meetings. Jerry Mitchamattended a 9\/28\/88 safety meeting which addressed the OSHA regulation prohibitingoperating cranes within ten feet of power lines. He also attended a 7\/1\/87 meeting whichaddressed the need to have a \”signal person\” when handling pipe. on the basis ofthe safety meetings Mitcham had attended, Shoemaker believed he was well trained; to herknowledge, he had never been cited for performing work unsafely. (Tr. 60-65, 68-70, 73,79, Exhibit R-1, Exhibit R-2).Since Marse and Tatum were newly hired, they had not been toany of Respondent’s formal safety meetings. Shoemaker did not know if they had receivedinstructions about maintaining distance between cranes and power lines.Employees receive a \”safety indoctrination,\” which is a basic overview ofsafety, their first day of work. Respondent expects employees to follow safetyinstructions and constantly advises that if they have any doubt, they should not proceedwithout checking with their foreman or the safety director. Shoemaker said a\”spotter\” was responsible for watching the wire and the pipe, and that if Tatumhad any doubt, he should not have proceeded (Tr. 75-76, 79-80, 83-86).Shoemaker said the accident occurred around 1:00 or 1:30 p.m.in a rented yard across the street from Respondent’s home office. She had been presentwhen John Brunette, the pipe superintendent, asked Ann Blackwell if he could use the yardto store pipe. As soon as she heard about the accident, Shoemaker went across the streetto the site. The sun’s glare was so intense she couldn’t actually look up at the powerlines. (Tr. 76-78, 82).Bryan Shoemaker testified that he assisted with the pipe-movingproject.\u00a0 He did not realize an accident had occurred until he heard a loud pop andMitcham yelling for help.\u00a0 He saw Tatum lying on the ground underneath the suspendedpipe; he pulled Tatum away from the pipe and administered first aid. (Tr. 87-90).Shoemaker was not looking at the power lines when the accidentoccurred and didn’t see if the crane or cables contacted the wire. Because they were\”looking into the sun\” neither he nor anyone else knew if the crane was withinten feet of the power line. Tatum did not warn the operator about the crane’s proximity tothe power lines, nor did anyone else. Shoemaker recalled that he had told Elveston hethought the crane had gotten into the lines. (Tr. 89-92).Shoemaker said they had successfully moved a load of pipebefore lunch and that they were on their second load when the accident occurred. He saidif the crane was moved at all between loads, \”it was slight, because it was still inthe same general location.\” He acknowledged that C-1 depicted the scene where theywere unloading pipe when the accident occurred. (Tr. 90, 92, 94).John Brunette testified that he was Respondent’s pipe divisionmanager and that he had held the same position at the time of the accident. He generallyrestricts new hires to working in the pipe shop area for about 45 days so that he has anopportunity to observe whether they work safely. Brunette said that a \”spotter\”in this case would have been responsible for watching the distance between the crane andthe overhead lines. (Tr. 95, 98, 100).Since Brunette was not present when the accident occurred, hedidn’t really know what happened. He did not know if Tatum had been designated as\”spotter\” but felt that if Tatum was given the responsibility and instructedabout the job, he was intelligent enough to carry out the duties.Brunette knew Tatum because they lived in the same community and Tatum graduated with oneof his sons. He also knew Mitcham and considered him a safety-conscious employee. (Tr. 91,99, 101).The Merits29 C.F.R. 1926.180(j)(1)(i) provides as follows:Operating near electric power lines-(1) Clearances.Except where the electrical distribution and transmission lines have been deenergized andvisibly grounded at point of work or where insulating barriers not a part of or anattachment to the crane have been erected to prevent physical contact with the lines,cranes shall be operated proximate to, under over, by, or near power lines only inaccordance with the following:(i) For lines rated 50 kv. or below, minimum clearance betweenthe lines and any part of the crane or load shall be 10 feet.Respondent contends that the Secretary has not met her burdenof proof in this case because the evidence does not support a finding of a violation of1910.180(j)(1)(i). Conceding that an accident did take place, Respondent points out thatthe Secretary has the burden of proving not that an accident occurred, but that aviolation of an OSHA regulation occurred.Respondent correctly notes that the Secretary has the burden ofproving a violation of an OSHA regulation in proceedings before the Commission. However,to meet this burden, the Secretary need not establish a fact with absolute certainty. Sheneed only prove by a preponderance of the evidence that a violation occurred. AstraPharmaceutical Products, Inc., 9 OSHC (BNA) 2126 (1981). The Commission has held thata preponderance of the evidence is \”that quantum of evidence which is sufficient toconvince the trier of fact that the facts asserted by a proponent are more probably truethan false.\” Id. at 2131, n. 17.Respondent argues that because no credible witness establishedthat it operated the cherry-picker crane within ten feet of the power line, the evidencedoes not support a violation of 1910.180(j)(1)(i). However, Respondent’s argument mustfail, since the Secretary’s evidence in this case meets the standard enunciated in Astra.Elveston’s investigation indicated the crane or its load hadcontacted the power line. He observed fresh burn marks on the crane’s cable, indicating ahigh-voltage burn. His measurement of the crane’s boom and the distance from the crane tothe nearest power line revealed the crane was close enough to have contacted the line.While not conclusive, Elveston’s testimony tends to demonstrate a violation, particularlywhen considered with other evidence.Winckler’s testimony demonstrated the crane’s boom was in theline and the line: was energized not only when he arrived at the scene but also when hereceived a call about the line. He confirmed the crane had not been moved before hisarrival and was not moved while he was at the site.Summers’ testimony revealed that the lines involved in theaccident carried 7,620 volts of electricity. He stated that it is a \”knownfactor\” that electricity from a 7,620 volt line cannot arc unless a ground potentialis within 1\/2\” of the line. After hearing all of the evidence, his opinion was thatit was impossible for electricity from a 7,620 volt line to arc ten feet or even fivefeet, unless the ground potential had first contacted the Iine.Marse testified that he heard two \”pops\” and that thesecond pop was when the pipe swung into the line after the accident. Marse also testifiedthe crane or cable \”touched the wire the second time.\” Bryan Shoemaker said herealized an accident had occurred when he heard a loud pop and Mitcham yelling. Althoughneither Marse nor Shoemaker saw the crane contact the wire at the time of the accident,their testimony taken together supports the conclusion that the crane or its loadcontacted the line twice: once when Tatum was electrocuted and again after the accident.Shoemaker also confirmed that Exhibit C-1, showing the crane in close proximity to thepower line, depicted the scene where they were unloading pipe when the accident occurred.The facts in Danco Construction Company, 5 OSHC (BNA)2043 (1977), aff’d, 568 F.2d 1243, 6 OSHC (BNA) 2039 (8th Cir. 1978), aresubstantially similar to the facts in this case. In Danco, OSHA cited the employerfor operating a crane within ten feet of an energized power line in violation of1926.550(a)(15)(i). Danco’s employees were engaged in unloading pipe from a truck andstacking it on \”skids.\” Bright sunlight shining directly in the crane operator’sface prevented him from seeing the overhead electric lines. Two men were handling asection of pipe which was attached to the crane’s boom; one was killed and one was injuredwhen the boom contacted the lines. The Eighth Circuit noted that it was not establishedwhether the crane’s boom actually touched the lines or merely was close enough forelectricity to arc from the line to the boom. The Court nevertheless held there was\”substantial evidence in the record to support the Commission’s finding that the boomcame within at least ten feet of the lines in violation of 29 C.F.R.1926.550(a)(15)(i).\” Danco, 6 OSHC (BNA) at 2040, n.3.The evidence in this case demonstrates a violation of1910.180(j)(1)(i). Once the Secretary has established a prima facie case of noncompliancewith a standard, the burden shifts to the employer to either rebut the Secretary’sevidence or to prove an affirmative defense. York Heel of Maine, Inc., 9 OSHC (BNA)1803 (1981); Hughes Brothers, Inc., 6 OSHC (BNA) 1830 (1978). As the following willshow, Respondent does neither.Respondent urges that Summers is a biased witness and histestimony should be given little weight, since he is a GSU employee and GSU is a primarydefendant in a third party lawsuit regarding Michael Tatum’s death. Standing alone,Respondent’s argument might have some merit. However, Commission cases support Summers’testimony.In Butler Lime and Cement Company, 5 OSHC (BNA) 1370, 1373, Commissioner Moran’sdissent pointed out that the maximum arcing distance for a 50,000 volt power line understandard atmospheric conditions was .668 of an inch, and that a 4,800 volt line would arca \”significantly lesser distance.\” Commissioner Moran also noted that\”[s]uch small arcing distances makes it clear that the purpose of the safety distancefactor specified in … [1910.180(j)(1)(i)] … is to protect against inadvertent error inmanipulating the boom, rather than the possibility of arcing.\” Id. at 1373. Seealso Kent Nowlin Construction. Inc., 7 OSHC (BNA) 1171, OSHRC Docket No. 77-4471(Judge Blythe, Dec. 1973) (available on WESTLAW, FLB-OSRC Database), aff’d, 648F.2d 1278, 9 OSHC (BNA) 1709 (10th Cir. 1981).Respondent implies that electricity could have arced over tenfeet from the line, thus causing the accident. However, Summers’ testimony andCommissioner Moran’s comments in Butler soundly refute any notion that arcingoccurred in the manner Respondent suggests. Respondent presented no expert testimony atthe hearing and cites no cases in support of its arcing theory; therefore, its theory mustfail. Respondent does, however, have other arguments.Respondent urges that if the crane or its load contacted thepower line at all, it was only after the accident and occurred as a result of the force ofthe shock that threw Tatum from the pipe. Respondent also urges that this contact explainsany burn marks on the crane cables. This argument is without merit. While the evidencedoes demonstrate that the crane contacted the power lines after the accident, the evidencedemonstrates that the crane also either contacted the line or was within 1\/2\” of theline at the time of the accident and that this initial contact resulted in Tatum’selectrocution. Respondent offers no other plausible explanation for the accident; indeed,there appears to be none.Respondent points out that Bryan Shoemaker testified the crewhad moved a load of pipe earlier in the day without incident and that the crane was in thesame location at the time of the accident. However, Respondent’s statement of the recordis not quite accurate. Shoemaker actually said that if the crane was moved at all betweenloads \”it was slight, because it was still in the same general location.\” (Tr.92). However, even a \”slight\” move could have resulted in the crane operatingwithin ten feet of the line at the time of the accident. Further, even if the crane wasnot moved, the fact that the crew did not suffer an accident earlier does not refute thelikelihood that the crane was operating within ten feet of the line at the time of theaccident.Respondent places great emphasis on the fact that Tatum,allegedly the \”spotter,\” did not warn Mitcham that the crane was too close tothe power line. Respondent seems to suggest that the fact that Tatum did not warn Mitchamsupports its position that there was no violation of the ten foot requirement. However,Respondent’s argument is flawed. For one thing, it is not at all clear that Tatum wasdesignated \”spotter.\” Although Jerry Mitcham may have told Tatum to watch thepower lines, Marse said Tatum was not a \”spotter.\” (Tr. 27, 44).Even if he was, the evidence shows that he had not received thenecessary training to enable him to competently perform the duties of that position. Marsestated that neither he nor Tatum had received any instructions about cranes and powerlines; consequently, neither was paying attention to the lines when the accident occurred.Elveston testified that Bryan Shoemaker told him he had not received any specificinstructions about cranes and power lines. Further, Mitcham told him that while he hadreceived some training about keeping cranes out of power lines, he did not rememberanything specific about distances and voltages. (Tr. 20, 41, 45). It appears that at leastone reason no one noticed whether the crane was too close to the lines was becauseRespondent had not adequately instructed its employees.Other reasons appear to be the glare of the sun and the poorvisibility through the crane cab’s window. Martha Shoemaker testified that when she wentto the accident site, the glare was so intense she couldn’t look up at the lines. BryanShoemaker testified that he could not measure the distance because \”we were lookinginto the sun.\” Elveston said the view through the opaque window at the top of the cabwas so poor that the operator could not have seen the power lines through the window; hewould have had to lean outside the cab to see the lines. (Tr. 24-25, 82, 91). Again,however, had Respondent adequately instructed its employees, they would presumably nothave been working under conditions in which they could not see overhead power lines.Respondent does not actually make an \”unpreventableemployee misconduct\” defense. However, even if it had, Commission decisions haverejected such defenses where the employee was either inadequately instructed or unaware ofthe employer’s safety rule. See New England TeIephone and Telegraph Co., 8 OSHC(BNA) 1478 (1980); Danco Construction Co., 5 OSHC (BNA) 2043 (1977), aff’d,568 F.2d 12438 6 OSHC (BNA) 2039 (8th Cir. 1978). The Commission has also hold that safetymeetings are not enough and that employers should inspect worksites to determine whathazards are present so that adequate instructions can be given. Enfield’s Tree Service,Inc., 5 OSHC (BNA) 1142 (1977). Compare Houston Systems Manufacturing Co., Inc.,9 OSHC (BNA) 2037 (1981) (Commission affirmed ALJ’s vacation of citation since employerdemonstrated it had taken all reasonable precautions to prevent violation).While Respondent clearly has a safety program that includes theOSHA ten-foot requirement, the evidence shows that Respondent did not adequatelycommunicate the requirement to its employees. Further, since there is no evidence thatRespondent attempted to determine the hazards present at the site and instruct itsemployees accordingly, Respondent did not take all reasonable precautions to prevent theviolation.Based on the foregoing, I find that the evidence establishes aviolation of 1910.180(j)(1)(i). Turning to the assessment of an appropriate penalty, therecord shows that Respondent is a safety-conscious company which holds regular safetymeetings for its employees. Respondent has no history of previous violations. The problemlies in its failure, at least in this instance, to communicate reasonable instructionsregarding safety hazards at the worksite. The Secretary proposed a penalty of $640.Considering the factors set forth in ?17(j) of the Act, the proposed penalty isappropriate. It reflects Respondent’s size, history, good faith and gravity of theviolation.Conclusion of Law1. Respondent, Baytown Construction Company, is engaged in abusiness affecting commerce and has employees within the meaning of ? 3(5) of the Act.The Commission has jurisdiction of the parties and of the subject matter of theproceeding.2. On October 27, 1988 Respondent was in serious violation of29 C.F.R. 1910.180(j)(1)(i).3. On October 27, 1988 Respondent was not in violation of 29 C.F.R. 1910.180(i)(5)(i).ORDEROn the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:1. Item 1 of serious citation number 1 is AFFIRMED and apenalty of $640 is assessed.2. Item 1 of \”other than serious\” citation number 2is VACATED.Louis G. LaVecchiaAdministrative Law JudgeDATE: June 4, 1990\u00a0FOOTNOTES:[[1]] The cited standard provides as follows:? 1910.180 Crawler locomotive and truck cranes.(j) Operating near electric power lines–(1) Clearances.Except where the electrical distribution and transmission lines have been deenergized andvisibly grounded at point of work or where insulating barriers not a part of or anattachment to the crane have been erected to prevent physical contact with the lines,cranes shall be operated proximate to, under, over, by, or near powerlines only inaccordance with the following:(i) For lines rated 50 kv. or below, minimum clearance between the lines and any part ofthe crane or load shall be 10 feet.The cited standard has been revised as of July 1, 1991.However, the cited standard was in effect when the alleged violation took place.[[2]] A second citation, which alleged an other-than-seriousviolation of 29 C.F.R. ? 1910.180(i)(5)(i), for failure to provide a fire extinguisher inclose proximity, was vacated. The Secretary did not seek review of that portion of thejudge’s decision, and it is not at issue here.[[3]] Mitcham did not testify at the hearing.[[4]] Shoemaker testified that when he looked up at the crane,it was not touching the powerline because \”he could distinguish [the] two looking upinto it.\” However, he admits that it was possible that it could have \”swungback\” into the powerline.[[5]] However, the Galveston County judge wrote that \”[i]tis possible that i told the lawyers to come in on the 23rd in case my court coordinatorhad not been able to contact all of the Jurors.\”[[6]] Baytown has not stated why all three of its corporaterepresentatives were at the Galveston hearing. In its Motion for Continuance, Baytown onlystates that they \”are among those needed in the Galveston trial.\”[7]] At Baytown’s request, the proceedings in this cast wereconducted under the Commission’s simplified proceedings rules. 29 C.F.R. ? 2200.200-212.Under simplified proceedings, there is no bar to the admission of hearsay because theFederal Rules of Evidence do not apply. See 29 C.F.R. ? 2200.207(c)(1).\u00a0″