“SECRETARY OF LABOR,Complainant,v.CONNECTICUT LIGHT & POWER COMPANY,Respondent.OSHRC Docket No. 85-1118_DECISION _Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The issue in this case is whether Connecticut Light & Power Company (CL& P) violated the \”general duty clause,\” section 5(a)(1) [[1\/]] of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678, byfailing to adequately rain and supervise employees who work in proximityto energized electrical equipment. We conclude that CL & P adequatelytrained and supervised its employees. Accordingly, we reverse thedecision of the administrative law judge and vacate the citation.This case arises out of a fatal accident that occurred when one of CL &P’s lead electricians was electrocuted after contacting an energizedlightning arrestor.[[2\/]] On May 21, 1985, CL & P sent a crew,consisting of lead electrician Robert Taylor and substation maintenanceelectrician Peter Theroux, to replace a stand-off insulator[[3\/]] andthree cut-outs[[4\/]] at the Rood Avenue substation[[5\/]] in Windsor,Connecticut. Before beginning their task, the crew had to carry outtheir switching instructions, which made it possible for them todeenergize the areas to be worked upon and to reroute the power to avoidan interruption of service to a nearby shopping mall. Switchinginstructions are a set of orders that show every step necessary tode-energize and electrically isolate the equipment that will be workedon. Switching instructions are also designed to reroute power to avoidinterruptions in service. These instructions are written by systemdispatchers, technicians, or engineers and are individually written foreach work assignment. Although the instructions are written by employeeswho may never even have seen the worksite, onsite personnel are involvedin implementing the instructions. Thus, every step of the procedure iscalled into the dispatcher when completed by the onsite maintenanceworkers. Clearance is then obtained from the dispatcher to go on to thenext step.While the crew was carrying out their switching instructions, they werevisited by at least one of the two foremen in charge of the site, LouisPilver.[[6\/]] The foreman engaged in general \”shop talk\” with the crew,and did not discuss safety matters.After completing the switching instructions, Theroux attached groundsabove and below the cut-outs to be replaced. The crew then placed theirladder on the steel support framework to the right of the stand-offinsulators and cut-outs, which were located 15-20 feet above the ground.After replacing the first cut-out, the crew moved the ladder between themiddle and extreme left sets of insulators and cut-outs. Taylor climbedthe ladder to tie it off. Apparently, he soon came into contact with anenergized lightning arrestor and was fatally injured.[[7\/]]Theroux testified that, when he and Taylor arrived at the substation,they looked over the area to assess the job and determine what safetyhazards might be encountered. Even though Theroux himself latertestified that the lightning arrestors were obvious (\”it sticks out likea sore thumb\”), the crew never noticed them at the time. Theroux couldnot explain why the lightning arrestors were overlooked. He testified,however, that before work begins, the electricians construct animaginary \”bubble\” around the work area and determine whether anythingwithin that bubble is energized. He speculated that the lightningarrestors were not noticed because they were outside the \”bubble.\”The lightning arrestors were energized with 23,000 volts. CL & P’s\”Accident Prevention Manual\” requires that employees not place any partof their body, or reach with any conducting object, nearer than 30inches from equipment energized at that voltage. Here, the lightningarrestors were 30-32 inches from the equipment to be worked on.Therefore, they would have been at or just beyond the periphery of the\”bubble\” visualized by the crew.As a result of an OSHA inspection and investigation conducted after theaccident, a citation was issued alleging that CL & P had violatedsection 5(a)(1) of the Act because employees were exposed to the hazardof electrocution by coming into contact with the energized portion oflightning arrestors. The citation emphasized that the employees wereworking without protection from overhead energized parts, and specifiedfour alternative steps CL & P could have taken to protect the employees:(1) Deenergize and ground the energized parts at points of work;(2) Guard or insulate the energized parts from the employees;(3) Guard or insulate the employees from the energized parts by thewearing of appropriate personal protective equipment or the equivalent; or(4) Maintain the minimum safe working and clear hot stick distance, asshown in Table V of 29 C.F.R. 1926.950.[[8\/]]A penalty of $1,000 was proposed.At the hearing, CL & P established that, under its safety program,employees were required to take the protective measures listed in thecitation. Accordingly, the hearing focused upon the adequacy of thesafety program as a means of eliminating the cited hazard and theadequacy of supervision.CL & P’s \”Accident Prevention Manual\” requires employees to take thesafety measures set forth in the citation. As part of the employees’training, they are expected to undertake a periodic, word-by-word reviewof the manual. Both Theroux and Taylor had taken part in the most recentreview; this occurred in late 1983, approximately one year before theaccident. Another review was scheduled for 1986. CL & P also conductsregular monthly safety meetings where attendance is mandatory. Themeetings generally last between five minutes and two hours, depending onthe topic being discussed. At these meetings, supervisors reviewaccidents that occurred throughout the country, examine \”close calls\”within the company, and discuss a wide variety of topics, such asprotective equipment, switching and tagging, and use of rubber goods.Also, employees are given an opportunity to discuss any safety problemsthat they might have encountered. Each area within the company has asafety committee composed of employee representatives from eachdepartment. These committees evaluate safety by going into the field andvisiting work areas.It is the duty of the supervisors to make sure that jobs are performedsafely. To carry out this responsibility, foremen visit the sites, holdsafety meetings, and institute safety incentive programs. During a sitevisit, the supervisor has the responsibility of pointing out hazardsthat may be encountered.Although supervisors are ultimately responsible for seeing that work isperformed safely, the company also places substantial responsibility onthe work crews for assuring their own safety. For example, a crew leaderis expected to assess the work site for potential difficulties beforebeginning a job. It is also up to the crew to determine if safeclearances can be maintained from energized equipment or if theequipment should be de-energized.To enforce its safety rules, CL & P has a policy of progressivepenalties varying with the type of violation. Ordinarily, the first stepis a verbal warning, followed with a letter placed permanently in theemployee’s file. Continuing offenders could be suspended and,ultimately, fired. Fillmore Bain was the Area Superintendent of theHartford Area Work Center for CL & P at the time of the accident and, atthe time of the hearing, was the company’s Director of OccupationalSafety and Health. He testified that, in his three years with thecompany, he has made sure that employees received letters of reprimandwhen this sanction was called for, but he was unaware of any instancewhere an employee had been either suspended or fired. He also testifiedthat, before the incident, CL & P’s Hartford Area Work Center, of whichthe Windsor facilities are a part, had gone two years without alost-time accident.It was undisputed that CL & P’s safety program, as reflected by itssafety manual and training program, required its employees to follow theprecautions set forth in the citation and that, on paper, the companyhad an excellent safety program. The Secretary contends, however, thatthe safety program was deficient in two primary areas: training andsupervision. That the employees failed to detect and comprehend thehazard posed by the lightning arrestors is strong evidence, in theSecretary’s view, that the safety training provided by the company wasdeficient. Further, the Secretary contends that the failure of theforemen to point out the hazard posed by the arrestors when they visitedthe site indicates a lack of proper supervision.In affirming the citation, the judge held that the company had failed toestablish, as an affirmative defense, that the accident was the resultof unpreventable employee misconduct. Although the Judge found no faultwith the safety training given employees, he agreed that the Secretaryhad established that the hazard would have been both foreseeable andpreventable if the company had exercised adequate supervision. In sofinding, he agreed with the compliance officer that, while on paper CL &P had an excellent safety program, in practice the program was lacking,primarily because it overemphasized employee compliance with safetyrequirements at the expense of supervisory responsibility.We see this case differently. To establish a section 5(a)(1) violationthe Secretary must prove (1) that a condition or activity in theemployer’s workplace presented a hazard to employees, (2) that the citedemployer or the employer’s industry recognized the hazard, (3) that thehazard was causing or likely to cause death or serious physical harm,and (4) that feasible means existed to eliminate or materially reducethe hazard. _Kastalon, Inc., _12 BNA OSHC 1928, 1931, 1986-87 CCH OSHD ?27,643 at p. 35,973 (No. 79-3561, 1986); _Pelron Corp., _12 BNA OSHC1833, 1835, 1986-87 CCH OSHD ? 27,605 at p. 35,871 (No. 82-388, 1986).In this case, there is no dispute that CL & P recognized the hazardposed by the energized lightning arrestors and that the hazard waslikely to cause death or serious physical harm. The disputed question iswhether the Secretary established that the company’s abatement methodswere inadequate or that there was a more effective means by which CL & Pcould have freed the workplace of the hazard.When elimination of a recognized hazard requires employees to followsafe procedures, an employer is not in violation of section 5(a)(1) ifit has established workrules designed to prevent the hazards fromoccurring, has adequately communicated the workrules to the employees,has taken steps to discover noncompliance with the rules, and haseffectively enforced the rules in the event of noncompliance. _InlandSteel Co.,_ 12 BNA OSHC 1968, 1976, 1986- 87 CCH OSHD ? 27,647 at p.36,003 (No. 79-3286, 1986).If the Secretary alleges that the employer’s work rules or safetyprogram are not adequate to eliminate a recognized hazard, then theburden is on the Secretary to indicate the additional steps the employershould have taken to avoid citation, and to demonstrate the feasibilityand likely utility of these measures. _National Realty & ConstructionCo. v. OSHRC,_ 489 F.2d 1257, 1267-68 & n.40 (D.C. Cir. 1973); _CerroMetal Products Div., Marmon Group, Inc.,_ 12 BNA OSHC 1821, 1822,1986-87 CCH OSHD ? 27,579, at p. 35,829 (No. 78-5159, 1986). Inaddition, the Secretary must show that knowledgeable persons familiarwith the industry would regard these additional measures as necessaryand appropriate in the particular circumstances existing at theemployer’s worksite. _Cerro Metal Products._ 12 BNA OSHC at 1822-23,1986 CCH OSHD at p. 35,829.Thus, the judge’s holding that the burden was on the employer to showthe adequacy of its safety program and that CL & P had failed to sustainthis burden was incorrect. _Cerro Metal Products, _12 BNA OSHC at 1823,1986 CCH OSHD at p. 35,829._See Western Massachusetts Electric Co.,_ 81OSAHRC 63\/B13, 9 BNA OSHC 1940, 1944-45, 1981 CCH OSHD ? 25,470 at pp.31,765-66 (No. 76-1174, 1981) (elements of unpreventable employeemisconduct defense, which applies to cases under section 5(a)(2)alleging violations of OSHA standards, are part of Secretary’s burden ofproof in section 5(a)(1) cases). We conclude instead that the Secretaryfailed to meet her burden of proving the inadequacy of the safetyprogram because she failed to establish either that the accident was theresult of inadequate training or that more exact supervision by theforemen would have been both feasible and useful.The evidence establishes that the employees were trained adequately torecognize the hazard posed by the energized lightning arrestors. Bothemployees were accomplished electricians with years of experience on thejob. Lead electrician Robert Taylor had been with the company for tenyears and had a spotless safety record. Peter Theroux had been with CL &P for 14 years, including 4-1\/2 years in substation maintenance, and onoccasion, he had performed as a lead electrician. Not only was the jobroutine but, as Theroux testified, it took place at a substation atwhich he had worked many times before. Theroux further testified that hewas fully aware of the hazard posed by energized lightning arrestors andof the need to maintain proper clearance. He claimed that, if he orTaylor had been aware of the arrestors, they would have had themde-energized before proceeding with the job. Theroux also stated thatthey were not put under any time pressure to complete their job, andthat de-energizing the lightning arrestors would have taken only fifteenminutes. Yet, the record conclusively establishes (through witnesstestimony and photographic exhibits) that the lightning arrestors wereplainly visible and obviously energized. Accordingly, neither Therouxnor any of the other witnesses could explain how the crew had failed tonotice the lightning arrestors.The evidence establishes that the crew’s failure to observe thearrestors was the result of unpredictable, and thus unforeseeable,employee error: it was not caused by the crew’s failure to understandthe hazards involved or the precautions that were necessary and wastherefore not due to a lack of training. The crew was fullyknowledgeable about the hazard presented by the lightning arrestors.There is no evidence that additional training would have made them morecognizant of the hazards posed by the arrestors or more likely to takeprecautions against the hazard.The Secretary next argues that, when the foremen visited the site, theyshould have noted that, because of the proximity of the cut-outs to thelightning arrestors, the work could not be done without violating theclearance requirements. The Secretary faults the foremen for notrecognizing that the arrestors would not be de-energized during theswitching procedure and for failing to instruct the crew to have thearrestors de-energized. The Secretary contends that the absence of awarning of the hazard presented was due to inadequate supervision andthe company’s policy of relying too heavily upon the safetyconsciousness of its employees.We disagree, and find that the company was justified in relying on thisskilled and practiced crew to discover the hazard and take properprecautions. As already noted, both employees were highly experiencedand well trained, and both had excellent safety records. Additionally,Theroux had worked at that substation on numerous occasions and couldreasonably have been expected to have been familiar with itsconfiguration. Moreover, when foreman Pilver visited the site, the crewwas still performing switching procedures. Therefore, he had neitheractual nor constructive notice that the crew was unaware of the arrestors.This was not a situation involving an unusual, hidden, or easilyoverlooked hazard. Rather, the hazard was open and notorious. The workwas considered routine. To hold that, under the circumstances of thiscase, the foremen should have warned the crew about the arrestors wouldbe tantamount to placing upon supervisors the duty to warn employeesabout every conceivable hazard that may be encountered at every stage ofa job, regardless of how basic and obvious the hazard might be andregardless of how well-trained and experienced the employees might be.As stated by the United States Court of Appeals for the District ofColumbia, in vacating a similar section 5(a)(1) citation:Hazardous conduct is not preventable if it is so idiosyncratic andimplausible in motive or means that conscientious experts, familiar withthe industry, would not take it into account in prescribing a safetyprogram. Nor is misconduct preventable if its elimination would requiremethods of hiring, training, monitoring, or sanctioning workers whichare either so untested or so expensive that safety experts wouldsubstantially concur in thinking the methods infeasible._National Realty & Construction Co. v. OSHRC,_ 489 F.2d at 1266.An employer is justified in placing a great deal of reliance on thejudgment of highly experienced and trained employees with good safetyrecords. _Cerro Metal Products, _12 BNA OSHC at 1825, 1986-87 CCH OSHDat p. 35,832. There is no evidence that, given the experience and recordof these employees and the obvious nature of the hazard, anyknowledgeable person familiar with the circumstances would haveanticipated that the crew would overlook the lightning arrestors.Moreover, the Secretary has failed to present any evidence that such alevel of supervision would be either feasible or reasonable, or that thelevel of supervision provided by the company fell short of whatconscientious persons familiar with the industry would employ.Accordingly, it is ORDERED that the judge’s decision is reversed and thecitation is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 26, 1989————————————————————————SECRETARY OF LABOR,Complainantv.CONNECTICUT LIGHT & POWER COMPANY,RespondentOSHRC Docket No. 85-1118_Decision & Order_Appearances: For the complainant:Albert H. Ross, Regional SolicitorU. S. Department of Labor, Boston, MABY: _David A. Snyder,_ Esq.For the respondent:_Dean M. Cordiano,_ Esq.Day, Berry & HowardHartford, CT_The Issue:_A lead electrician with 10 years’ experience suffered fatal injuries ata substation when he, in violation of his employer’s safe clearance(distance) rule, came too close and actually contacted an energizedlightning arrester. As a result, his employer was charged with aviolation of the general duty clause [29 U.S.C. ? 654(a)(1)[[1\/]]because the workplace it provided was not \”free\” of recognized hazardsas that term has been defined.[[2\/]] The essential defense is based uponunpreventable employee misconduct.Since, ultimately, \”…effective safety enforcement requires a diligenteffort to discover and discourage violations of safety rules byemployees,\”[[3\/]] the factual issues presented, proofs directed to, andargued are:1) Were respondent’s employees sufficiently educated and trained in thecompany’s safety manual; and2) Were respondent’s two supervisors, who visited the substationseparately before the electricians there set up the ladder to approachthe area where the job was to be done, remiss in their functions (sothat, statutorily, the workplace was not \”free\” of the hazard) byfailing to point out the proximity of the lightning arresters to thatarea and reminding the electricians of the safeguards to be observed.[[4\/]]If the electrician’s training was flawed so that he did not comply withthe respondent’s safety manual; or if the two supervisors should havewarned the electrician of the danger, then, in either case, complainanthas carried his burden of proving the alleged violation was foreseeableand could have been prevented.[[5\/]]To rebut this, respondent must show that it (1) has established workrules designed to prevent the alleged violation; (2) has adequatelycommunicated these rules to its employees; (3) has taken steps todiscover violations; and (4) has effectively enforced the rules ininstances of their violation. _Secretary_ v. _Marson Corp.,_ 82 OSAHRC29\/C4, 10 BNA OSHC 1660, CCH ? 23,629 (1982).Based on my findings and conclusions below, respondent has failed torebut complainant’s proof of inadequate supervision and the citation isaffirmed._Statement of Proceedings:_Two electricians employed by respondent, Connecticut Light & PowerCompany, a manufacturer and distributor of electricity in Connecticut,were assigned to its Rood Avenue substation in Windsor, Connecticut, toperform routine maintenance work. An accident occurred and over theperiod of June 10 to July 17, 1985, complainant, the Occupational Safetyand Health Administration of the U. S. Department of Labor, conducted aninspection and investigation. As a result, on September 11, 1985, acitation was issued [[6\/]] alleging a violation of the general dutyclause (note 1, above) in that employees were exposed to the hazard ofelectrocution by coming in contact with energized portions of lightningarresters of approximately 23,000 volts without protections whilereplacing stand-off insulators and fused cut-outs. The citationspecifies the following methods of abatement available, \”among others:\”1. De-energize and ground the energized parts at the points of work;2. Guard or insulate them from employees;3. Ground or insulate the employees from the energized parts withpersonal protective equipment; or4. Maintain the minimum safe working distance shown at table V-1 of 29C.F.R. ? 1926.950.A civil penalty of $1,000 is proposed and immediate abatement wasrequired. [[7\/]]Respondent’s notice of contest is dated September 27, 1985, and bringsall aspects of citation into contest. It also broaches the ultimatedefense claiming that the incident \”was an isolated case of anemployee’s failure to abide by well established and consistentlyenforced safety rules.\”The matter was heard on March 20 and 21, 1986, with both partiesrepresented by counsel. No employee or his organization claimed partystatus after due notice (Tr. 5\/20, 4). Respondent admitted thejurisdictional facts alleged in the complaint that it is an employerhaving employees and that it affects interstate commerce (Tr. 5\/20,4-5). Hence the Commission’s power to decide this case is established.29 U.S.C. ?? 652(3), (5) and 653(a). Post-hearing proposals and replybriefs were filed by September 5, 1986._The Evidence:_On May 21, 1985, lead electrician Robert Taylor and substationmaintenance electrician Peter Theroux were assigned with one otherelectrician to replace three stand-off insulators (which separates alive conductor from the steelwork on a structure) and three cut-outs (ordisconnects, a switch and fuse, in this case located on a structure 15feet up, which opens or closes a circuit) at the Rood Avenue, Windsor,Connecticut, substation. A substation is a large facility containingtransformers and breakers on steelwork enclosed by a link fence and keptlocked where the equipment will receive power and lower it to a voltageusable by customers. The foreman, Louis Pilver, made the assignment andthe other foreman, Edwin Raines (now deceased), was also on duty. (Tr.,5\/20, 13-14, 18-19, 21, 22, 23, 32)Twenty-three thousand volts of electricity entered this substation onthree incoming lines (Tr., 5\/20, 29, 30). Photo exhibit C-5 shows thissubstation (Tr., 5\/20, 20). The cut-outs, stand-off insulators andlightning arresters are clustered together and depicted close-up andmarked on photo exhibit C-6 (Tr., 5\/20, 26- 27, 66).The lightning arresters will take a surge of power from lightning andbring it to ground without blowing the fuse and protects the equipmentfrom these surges. They are about two feet tall, six to eight inches indiameter and are made of porcelain with steel caps. (Tr., 5\/20, 27-28)As shown on photo exhibit C-8, three clearly visible taps (lines) runfrom the incoming conductors to the lightning arresters (Tr., 5\/20, 31).That these are connected from the conductor to the arresters indicate,without doubt, that the arresters are energized (Tr., 5\/20, 102, 112).The distance from the stand-off insulators and cut-outs (equipment whichwas to be worked on) to the lightning arresters (which were not to beworked on) was approximately 30 inches according to respondent’sDirector of Occupational Safety and Health Bain. (Tr., 5\/20, 236).Complainant’s Compliance Officer Yi, from the blueprints, was told thatthe distance was 32 inches (Tr., 5\/21, 154-155). No actual measurementsof the distances were taken since to do so, the substation would have tobe totally de-energized and this was not deemed necessary (Tr., 5\/21,150-151).According to the respondent’s safety manual (exhibit R-1), a distance of30 inches or as stated there, a clearance of 2.5 feet, must bemaintained from energized parts of 23,000 nominal phase to phase voltage(R-1, page 39, section 27, and Tr., 5\/20, 120). No part of the employeeor his equipment, including the ladder, may come within that space (Tr.,5\/20, 122-123). A sign, stating the required distances for the differentvoltages, is posted on the substation’s gate (Tr., 5\/20, 111 and photoexhibit R-9).Both electrician Theroux and his crew supervisor Pilver testified thatthe work assignment could not have been accomplished without violatingthe clearance rule while the lightning arresters remained energized ornot otherwise protected against (Tr., 5\/20, 105-106, 223-225).Nonetheless, lead electrician Taylor, with the help of Mr. Theroux,placed the ladder adjacent to the middle insulator and ascended it totie it off (photo exhibit C-7). No one actually witnessed what nexthappened (Tr., 5\/20, 88), but he contacted an energized part, wasseverely injured and did not recover (exhibit C-12). Both parties agreethat Mr. Taylor came into contact with the lightning arrester(Complainant’s Brief, page 6, and respondent’s proposed finding no. 25).He was not, when he went up the ladder, wearing protective gloves (Tr.,5\/20, 75).The men had de-energized only the equipment to be repaired following theswitching instructions, a process requiring about three hours (exhibitC-14), had so notified the dispatcher, and were cleared to actuallyperform the work (Tr. 5\/20, 49). After attaching grounds above and belowthe first cut-out (on the right of photo exhibit C-6), Mr. Therouxremoved the stand-off insulator, tested the switch (handle) of thecut-out there and removed it and installed a new insulator. He then camedown off the ladder. (Tr., 5\/20, 65, 76, 77-78, 78-79)Before ascending, Mr. Theroux studied the area and mentally constructeda \”bubble\” around the pieces to be worked on. This enveloped his safearea and included the insulator and cut-out. What he had to do would nottake him into the clearance area between those pieces and the arrester,i.e., the latter was outside of the bubble. Later he realized he couldnot have avoided invading the safe clearance distance. (Tr., 5\/20, 107-108)The lightning arrester, close by, never came into his line of vision(Tr., 5\/20, 105). But it was obvious; however, he did not notice it(Tr., 5\/20, 102-103). He testified that his statement taken and writtenby the compliance officer, Mr. Yi, was inaccurate insofar as itindicated that both he and Mr. Taylor saw the arresters and thought themto be de-energized (Tr., 5\/20, 100-102 and exhibit C-15). He and Mr.Taylor, while planning the work to be done and before doing it, did notmention the arresters, barriers or personal protective equipment (Tr.,5\/20, 109-110). Now, with hindsight, the arrester sticks out like a\”sore thumb\” (Tr., 5\/20, 109).After he came off the ladder, Mr. Theroux and Mr. Taylor moved it to aposition between the other two insulators (photo exhibit C-6). Mr.Taylor went up to tie it off while Mr. Theroux prepared the grounds tobe attached when the accident occurred. (Tr., 5\/20, 68)The purpose of the switching instructions (Tr., 5\/20, 37, exhibit C-14)is to so adjust those switches necessary to de-energize the equipment onwhich work is to be done (Tr., 5\/20, 44). The instructions set forth thesteps to be taken by individual number in the order they are to be takenand the sheet is initialed by the electrician doing them and the timedone. The accomplishment of each step is called into the dispatcher andthen the next step will be assigned. The sequence of the instructionsmust be strictly followed by each crew involved. They are always writteneven in the case of emergency and are prepared by the dispatchers orengineers. (Tr., 5\/20, 45, 46-47)Mr. Taylor, being the lead electrician received the switchinginstructions on the morning of May 21 at the central headquarters(Sheldon Street, Hartford) where all employees first report every day(Tr., 5\/20, 15, 45). The instructions, prepared by the dispatcher, hadbeen checked by Mr. Pilver, this crew’s supervisor (Tr., 5\/20, 125).They are not complicated (Tr., 5\/20, 113) and Mr. Taylor, too, checkedthem thoroughly and made out all of the tags to be attached to theequipment to be sure that no one would improperly energize any circuit(Tr., 5\/20, 73-74).Mr. Taylor read the instructions and Mr. Theroux opened and closed thesubject switches (Tr., 5\/20, 85-87). After the area was de-energized,the various pieces were tested and partially grounded in case theyshould become energized (Tr., 5\/20, 76-77).According to respondent’s Director Bain, these instructions would notinclude de-energization of the lightning arresters as part of the job’spreparation. Rather, they prepare for the work electrically only. Theschematic integrity of the switching has no application to the physicalcharacteristics of the work’s environment be it on a pole, in a manholeor out at a substation. (Tr., 5\/21, 10-12) As \”an industry approach\”(Tr., 5\/21, 22, lines 24-25) switching instructions refer only to theequipment being worked and takes only that out of service to avoidinterrupting other services (Tr., 5\/21, 22-23). Other witnesses, all inrespondent’s employ, testified to the same effect (Kost, Director ofOS&H, Tr., 5\/21, 110, 138; Pilver, crew supervisor, Tr., 5\/20, 140, 146,169-170, 202)In fact, however, Director Bain explained, the switching instructionswould put the men on notice that the lightning arresters would remainenergized unless they took some protective step. By opening a certainswitch at the substation (step 14 on C-14, the switching instructions),the 2N17 feeder line (23,000 volts) would bypass the substation tocontinue its service to a large shopping center. That line then remainedunder load and was visibly tapped into the lightning arresters. (Tr.,5\/21, 25-28)But, according to Mr. Theroux, he and Mr. Taylor should have spotted thedanger of the proximity of the arresters to their work area. He wouldnot expect a foreman to tell them about it unless they saw it, nor wouldhe expect to have them covered by the switching instructions. It is theresponsibility of the electricians to examine their areas to be surethey may be worked within safely. (Tr., 5\/20, 96-97, 114, 125, 128, 130)And these men did that at this site (Tr., 5\/20, 63, 73).Both crew supervisors, Pilver and Raines, visited the work siteseparately on May 21, 1985. The former while Mr. Taylor and Mr. Therouxwere performing the switching when the ladder had not been put up. (Tr.,5\/20 375, 205). Mr. Theroux did not remember when Mr. Raines arrived orwhat operation was being done. Neither supervisor gave any instructionconcerning safety or personal protective equipment or the arresters.(Tr., 5\/20, 49, 50, 53)Mr. Pilver visits all work sites and checks safety. At this site, hediscussed only the necessity to replace all three cut-outs and nothingabout safety or the arresters which were obvious from the ground.Otherwise he did not check the substation.Mr. Pilver would have done the job as the men did, that is, with theladder where they placed it even though there were other options butwith the arresters de-energized. (Tr., 5\/20, 136, 176-178, 195, 204,206-207; also Director Bain, Tr., 5\/21, 6-7)The company rule, well-known, is that the arresters were to be treatedas energized unless otherwise determined (exhibit R-1, page 30, item21m). Any line is subject to this, and Mr. Theroux never violated thismandate. (Tr., 5\/20, 91, 100) He did not assume these arresters werede-energized; he simply did not notice them (Tr., 5\/20, 101-102). In hisexperience, it is \”very\” unusual to work within the safe clearancedistance without some protection (Tr., 5\/20, 118, line 20). It wouldhave required only about 10 minutes to call in the overhead (line) crewto detach the taps and thereby render the arresters dead. No work wouldhave been done until that crew finished. (Tr., 5\/20, 72-73, 104-105)But, to the contrary according to Director Bain, it is not unusual forman to find themselves too close to an energized line. Then, all workStops until the problem is resolved. (Tr., 5\/21, 32-33) A videotape(exhibit R-10) was shown in which Mr. Bain described four lines ofdefense to avoid the incident of May 21, 1985, none of which were takenthen: 1) Before any switching was done, the arresters should bede-energized; 2) After the switching, but before grounding the pieces,de-energize the arresters; 3) Test and verify that both sides of thework area were de-energized; or 4) Identify any lines within theproximity of the work area and barricade them. In assessing theircircumstances, the closeness of the arresters is noted and all workwould halt until they are without energy. (Tr., 5\/21, 35-37, 38)The training required to achieve the status of electrician covers afour- year period. Essentially, it is on-the-job training. A two-mancrew will be headed by a lead electrician and more than that will have acrew chief. The level above that is the foreman then the substationsupervisor. (Theroux, Tr., 5\/20, 41-42, 95) Of Mr. Theroux’s 14 yearsexperience, he, too, had served as lead electrician for about threeyears (Pilver, Tr., 5\/20, 14, 198).The training program itself, \”Planned Progression Program Electrician\”(exhibit R-8) indicates that five years are required as training beforethe level of electrician is reached. For 18 months, the employee helpsin all phases of the work and learns to identify tools, equipment andtheir uses (levels C-1 to C-3); then for 18 months, he assists inspecific and detailed work and testing (levels B-1 to B-4); and from his36th month to 60th, he will perform switching and testing and will doinstallation, maintenance and repair work (levels A-1 to A-3). Inaddition, formal electrical and related courses are taken throughout.(See third page of exhibit R-8)The Employee is rated as he goes along and Mr. Taylor completed thistraining (Tr., 5\/21, 67, 68-69). In fact, Director Bain commented, heperformed during his training and as a journeyman \”in an exemplarymanner\” (Tr., 5\/21, 69, lines 9-10) being very conscientious, preciseand alert. His safety record was spotless. (Tr., 5\/21, 69)All personnel were required to review the respondent’s accidentprevention manual (exhibit R-1) and sign-off that it had been done.There are no options to avoid this and Mr. Taylor’s last completionoccurred in 1983. This is a formal and checked procedure. (Tr. 5\/21, 57and exhibit R-3) Particularly, his review of the courses on clearances(exhibit R-2) occurred in March 1982 (Tr., 5\/21, 98). Mr. Pilvertestified that he took groups of employees, four or five, and reviewedeach chapter of the manual word by word about two years before theaccident. Both Taylor and Theroux did this. He believes this must bedone periodically by company rule (Tr., 5\/20, 198- 199). Respondent alsoconducts incentive programs in which an article from the manual bynumber only is posted on the board to be reviewed by employees. Mr.Pilver would then approach an employee and if he knew the subjectmatter, he would be awarded a prize (Tr., 5\/20, 197).Monthly safety meetings are conducted both at corporate and locallevels. All types of visual aids are used and all complaints are heard.During the six-month period preceding the accident, among other subjectsdiscussed were all accidents or close-calls, switching and hook-ups.(Director Bain, Tr., 5\/21, 58-61) These meetings are held during normalwork hours [for one and a half to two hours (Tr., 5\/21, 97)] andattendance is mandatory (Director Kost, Tr., 5\/21, 132-133).In addition to these meetings, the safety committees with fieldemployees assigned along with management personnel inspect jobs inprogress and these committees also meet monthly (Tr., 5\/21, 61). Safetytips or bulletins are posted regularly (Tr., 5\/21, 62).Discipline also follows a set pattern of: 1) a verbal warning, 2)permanent letters to an employee’s file, 3) suspension, and on thesubsequent offense, 4) discharge. This is not rigid but will be governedby the type of violation (Tr., 5\/21, 70).Mr. Theroux was not disciplined as a result of the accident because 1)he had not been in charge or responsible and 2) such action would havebeen excessive because he had been close to Mr. Taylor and the messageof the event–the purpose of disciplining an employee–was very clear.But he, Director Bain, and Crew Supervisor Pilver were in that theirratings were affected (financial) because safety goals were not met.This will remain in their files for three years. (Director Bain, Tr.,5\/21, 72-73, Mr. Pilver, Tr., 5\/20, 190, 191, 210)Both electricians had no prior safety violations and Mr. Theroux wascapable of leading this job (Mr. Pilver. Tr., 5\/20, 211-212, and Mr.Theroux, 92). The latter testified that no special instructions weregiven for this job or warnings and the rules concerning protectiveequipment, barriers, clearances and de-energizing the arresters werestandard operating procedures well known to both men (Tr. 5\/20, 34-35).He had worked with Mr. Taylor before and never saw him violate aclearance rule (Tr. 5\/20, 93). Mr. Theroux had worked at the Rood Streetsubstation many, many times (Tr., 5\/20, 96). This job was routine andall of the equipment was familiar (Tr., 5\/20, 98, 115).Mr. Pilver testified that it was the lead electrician’s responsibilityto assure a safe work area beyond that created by the switchinginstructions (Tr., 5\/20, 201); and Director Bain stated that all menwere responsible for safety, to carefully check the area before pickingup a tool (Video, exhibit C-16, Tr., 5\/20, 241, 242). The crew had tomake the judgment or disconnecting the arresters if their work bringsthem into too close proximity by company rule (Tr., 5\/21, 22). Theperson receiving the clearance must insure a safe work area and identifyit to all workers according to the manual, section 2.5, page 5 (Tr.,5\/21, 29, 30 and Mr. Pilver, Tr. 5\/20, 209, exhibit R-1, sec. I, part I,item B). Actually, Director Bain’s investigation of the accidentrevealed 12 violations by Mr. Taylor of the safety manual (Tr., 5\/21,41-55, respondent’s proposed findings 48, 51-61). Although Mr. Therouxdid not notice the arresters and assumed that the area was de-energized,company rule forbids such assumptions (Tr., 5\/21, 56). Yet, DirectorBain admitted that what went wrong was unknown; \”we missed a very simplething\” (Tr., 5\/20, 240, line 17); it was a simple job and something(lightning arresters) that should have been seen (Tr., 5\/20, 242 and5\/21, 5). But he does not consider that the supervisors (Messrs. Pilverand Raines) violated the safety manual in not warning the men about thearresters since neither of them saw the ladder in position and wherethat would place the electricians (Tr., 5\/21, 94).Missing the obvious was the cause, testified Director Bain, of a coupleof close situations encountered in the three months prior to May 1985.But until December 1984, the company enjoyed a two-year period free ofany lost time accident. (Tr., 5\/20, 241-242)Robert Kost who had held Director Bain’s position on May 21, 1985, andis now Regional Superintendent of Electrical Operations meaning that hehas overall responsibility for respondent’s entire operation insouthwest Connecticut (Tr., 5\/21, 105-107), summarized respondent’sreport of the employee injury (exhibit R-4) by stressing two violationscommitted by Mr. Taylor and Mr. Theroux. Mr. Taylor failed to insure 1)that the work would be done safely and 2) that the switching did in factprovide a safe work area, both aspects being the lead electrician’sresponsibility [Manual, ? I, Part I, Page 1, subsection (b)]. And Mr.Theroux, as the worker, was also responsible for ascertaining theboundary or a safe work area. (Tr., 5\/21, 130-131)Mr. Kost would not expect Mr. Pilver to rely on his memory of theclearances between pieces of equipment at the 40 to 50 substations, eachbeing unique, to warn the electricians; but he is certain Mr. Pilverwould have done so had he seen the ladder in position. While he istrained to foresee circumstances, each individual worker is also sotaught. (Tr., 5\/21, 138, 140)Mr. Pilver, in the Distribution Clearance Request which he prepared(exhibit C-13), did-as a special instruction-require the placement ofgrounds on both sides of the subject equipment. The intent of this,according to Mr. Kost, was to establish the work zone. (Tr., 5\/21, 110-111)By state statute, the Connecticut Department of Public Utilities isrequired to report on this type of accident. The engineer making thisreport (exhibit R-5) found the following violations: improper grounding;a failure to de-energize the arresters; a failure to wear protectivegloves but this was not a contributing factor; and a failure,particularly by the lead electrician, to observe the total area. Theaccident was not due to any faulty or improper construction or operationor the plant or equipment. (Tr., 5\/21, 134-136)Mr. Kost noted that all of the citation’s abatement requirements hadalready been established by respondent’s policy and manual (Tr., 5\/21, 129).Kang S. Yi, as a safety engineer, made the inspection for thecomplainant leading to the issuance of the citation. He holds degrees inelectrical engineering from the University of Hartford and from auniversity in Korea. (Tr., 5\/21, 141-145)As a result of his opening conference with Mr. Kost, he ratedrespondent’s safety program very highly (Tr., 5\/21, 146, 147 and exhibitR-7, OSHA worksheet, page 23. But by the completion of his inspection,Mr. Yi changed his evaluation of the program to inadequate (Tr., 5\/21,147-148).This change is not reflected on the worksheet but the narrative reportof the compliance officer does suggest that the initial impression wasmistaken. There, Mr. Yi read, \”Company has a good safety program for itsemployees. However, they rely on the individual for job safetyanalysis.\” (Tr., 5\/21, 166-167, 168, and 170 at lines 19-22) The programthen, to Mr. Yi, is good only on paper (Tr., 5\/21, 148-149, 171) But onthe worksheet and note sheet. (exhibit R-15 and the note-taking sheet,exhibit R-16) both of which Mr. Yi was cross-examined on point-by-point,do not reveal any part of the program weak enough to support thedowngrade (Tr., 5\/21, 173-178). And this change was not mentioned at theclosing conference (Tr., 5\/21, 178)Nonetheless, Mr. Yi testified on several points to justify hisconclusion that the safety program was not adequately communicated toemployees:1) Had Mr. Theroux been adequately trained, he would have noticed theobvious lightning arresters (that he didn’t, shocked Mr. Yi), and Mr.Taylor would not have violated all the rules specified by Director Bain;2) Mr. Pilver did not ensure that the area was safe to work within,i.e., the training was inadequate because the arresters were seen andnothing was done. Even though the ladder was not in position,supervisors knew what had to be done and should have examined thesubstation with that in mind. Mr. Pilver should have requireddisconnecting the taps while the electricians were still in theswitching process (Tr., 5\/21, 201-202, 205, 208, 209, 211-212, 217) WhenMr. Pilver visited the site he did not properly investigate or instructthe men; he simply passed the time or \”normal job talk\” as Mr. Yiparaphrased Mr. Theroux. (Tr., 5\/21, 149-150, 180-182); and3) The job was not well coordinated. While the assignment would be toreplace an insulator and three cut-outs, the men took only the formerwith them and would have to send for the cut-outs had the job been thencompleted. Too much was left to what the employee should have understoodand not enough direct supervision. (Tr., 5\/21, 149)Joseph Barresi, respondent’s superintendent of substation construction,testing and maintenance, attended the closing conference on July 17,1985. According to Mr. Yi, Mr. Barresi stated that–as a result of anincident in 1982 at a substation in which an employee was killed–thecompany formed a team to inspect every substation for possible clearanceproblems. That was the main point of the team’s objective and the RoodStreet facility was one found to have the problem. It was to becorrected during the planned upgrading of the station (to 115 KV) but,due to the cost, that had not been accomplished by May 1985. (Tr., 5\/21,156, 157-158)Mr. Barresi (called by the respondent), however, denied specifying RoodStreet as having a particular clearance problem. It was merely mentionedas one station on a list of many to be reviewed for clearance problems.What was mentioned about that station was its upgrading and thenecessity to replace a transformer there and remove metal clad switchgear. (Tr., 5\/21, 222, 226-227)_Contentions of the Parties, Findings of Fact and Conclusions:_Complainant argues that respondent failed to provide a workplace free ofrecognized hazards based on four factors:1) The men were required to be within the safe-clearance distance of thearresters by the very nature of the physical layout of the work area;2) Respondent, above the level of lead electrician, took no steps toassure the de-energization of the arresters;3) No warning was given to the men of the danger before the danger wasencountered and;4) Two crew supervisors inspecting the worksite before the men wereactually exposed to the hazard failed to remind or admonish the men ofthe obvious peril in their work area. (Complainant’s Brief, pages 8-9)The evidence presented supports these elements; respondent does notdispute them; and I find them to be the fact and even though DirectorBain indicated that the switching instructions would put the men onnotice of the live arresters, they should have known this by obvious andmore immediate signs, i.e, the taps connected to them from the threeconductors.These–coupled with respondent’s acknowledgment that (1) the arresterswith their power and proximity to the work area were a recognized hazardwhich (2) could cause death or serious physical harm and which (3) couldhave been avoided by any of the four methods specified in the citation\”among others\”–complete complainant’s proof of his case. Respondent’sattempt to rebut this on the grounds of unpreventable employeemisconduct has not been factually supported.That defense–fully tried out[[8\/]]–also rests on four factors:1) the existence of work rules to prevent a violation;2) adequate communication of these rules to its employees;3) a system to discover violations; and4) effective enforcement of the rules when violations are discovered._Secretary_ v. _Marson Corp.,_ above. And the defense must be measuredagainst the statutory principle that \”…an employer has a duty underthe Act to anticipate the hazards to which its employees may be exposedand to take the steps necessary to prevent such exposure.\” _Secretary_v. _Mosites Construction Co.,_ 81 OSAHRC 40\/A2, 9 BNA OSHC 1808 at 1812,CCH ? 25,357 (1981).In short, the work rules, item (1) of the defense, must be so drawn,complete and understood to effectively protect against a hazard when therules are properly communicated and enforced.[[9\/]]I find that the understanding of respondent’s work rules by itssupervisors and electricians to prevent an occurrence such as that ofMay 21, 1985, are deficient. Specifically, the Accident PreventionManual, Section 1 (exhibit R-1):Supervisor’s (above the level of lead electrician) Responsibility forSafety:Item 1(a)1: for safe working conditions;Item 1(a)4: for properly planned work performed in a safe manner;Item 1(a)5: for application of the general and specific safety rules bytheir workmen; andItem 1(a)7: for immediate steps to correct any violation of safety rulesobserved….These rules, I find, impose a positive duty on supervisors to know thehazards to be faced by employees in the routine performance of theirjobs and to warn those employees against them.Since Mr. Pilver testified that the way in which the work was done–placement of the ladder–was expected and was the way he would haveapproached the insulators and cut-outs, the closeness of the arrestersshould have been noted and the men warned of the hazard. That is,planning is anticipation for providing the \”safe working conditions\”(item 1(a)1), a supervisor’s responsibility.But, according to the testimony of respondent’s Messrs. Bain, Kost,Pilver and Theroux, the company relies on the lead electrician and otheremployees on a particular assignment to finally decide whether theirwork area was safe. And this I find to be the fact.That reliance is based on the Safety Manual, section 1, part 1b:b. Employees assigned to direct or lead a working crew will be heldresponsible for seeing that job procedures are carried out in a safemanner. They shall make certain that the men understand the following:1. Work to be done.2. Hazards that may be encountered.3. Proper procedure for doing the work safely.4. They are responsible for making available suitable protectiveequipment as furnished by the Company and seeing that it isproperly used.5. They are responsible for proper planning of work and for ascertainingthat all involved understand the plan so that each can carry out his jobprocedure safely.And, I find as fact, the electrician’s violated items 2 through 5. Infalling to account for the closeness of the arresters, they did notencompass the hazards to be encountered in their plan of the work (item2); their procedure in failing to de-energize them was not proper (item3); protective gloves were not worn (by Mr. Taylor) up in the work area(item 4); and the work was not properly planned before it was attemptedto be done insofar as the grounding was not done above the area (item 5).However, I find, all of these violations–except that of item 4(protective gloves)–could have been prevented, i.e., were foreseeable,if the meaning of the rules was carried out concerning the role playedby the supervisors.Framing the specifics of their performance set out above in part 1a ofthe manual is first the statement:a. Supervisors have the _definite_ responsibility for the following(emphasis mine).The specifics follow and then the obligations of the employees (part 1b)are set out. After that is section 1c which again refers to supervisorsand closes the frame:c. Frequent periodic Inspections of construction, operation andmaintenance equipment, materials, work areas, conditions and methodsshould be made by supervisors as a part of their routine duty. Suchinspections are essential to prevent accidents.It is clear, then, from the juxtaposition of the employee’s obligationsbetween the duties of the supervisors, that the primary safetyresponsibility is on the supervisor in a certain and set sequence:a) the supervisor plans the work to be done safely;b) the employees do the work according to the plan in the safe andproper manner; andc) the supervisor inspects frequently and periodically to be sure thework is being done correctly to prevent accidents.Total reliance on b) renders a) and c) nugatory or, at best, peripheraland not \”definite\” as the manual specifies. To avoid that result, it isincumbent on the supervisor to plan the work–even during an on- siteinspection–with all protections against hazards that he can reasonablyforesee.[[10\/]]The arresters were obvious from the ground. The crew supervisors visitedthe site before the men entered the work area 15 feet up. Their workwould take them–in the normal and expected course–within the safeclearance distance of the arresters. Yet, no word of instruction orwarning was given. Respondent’s policy, I find, under its safety manualis to rely on the employee’s judgment in this circumstance and itsmanual is so interpreted.I base this finding on the testimony of all of respondent’s witnesseswho, in so many words, stated this interpretation. Additionally,Director Bain refuted Mr. Theroux’s comment by stating that it is notunusual for an electrician to find himself too close to an energizedpart in the course of his work. Further, the Director, in reviewing thecompany’s safety performance, noted that the several close callsoccurring in 1985 (in the few months before the accident) resulted from,what he termed, missing the obvious.Such events are created in large measure by relying on the employee’sjudgement on the scene as opposed to careful planning.Thus, I conclude that respondent’s safety manual defining thesupervisor’s responsibility is inadequate insofar as it has beentranslated into an operative procedure since the supervisor has noobligation to warn against the hazards he knows of or actually sees at asite. His responsibility, as far as this record shows, stops at assuringthat the switching instructions do, in fact, take out of service onlythat equipment which is to be repaired.Such a work rule may not be considered effective against dangers facedby employees. Respondent’s defense of unpreventable employee misconductfails. Its rule, \”Supervisors have the definite responsibility for …safe working conditions\” (Manual, sec. 1, item 1(a)1), has not beeneffectuated (understood) to prevent violations by its employees, in thisinstance, of its safe clearance minimums. _Secretary _v. _MarsonCorporation,_ above.I conclude that complainant has carried Ms burden. The preponderance ofthe evidence shows that the employee’s violation of the clearance rulewas foreseeable and could have been prevented but for the inadequacy ofthe safety precautions and supervision in its failure to take note ofand warn against an obvious danger. _Capital Electric Line Builders,Inc._ v._Marshall,_ 678 F.2d 128, at 130. This is not a case where aproperly conceived work plan is thwarted by the unanticipated act of anemployee, albeit a supervisor. _Pennsylvania P & L_ v. _OSHRC,_ above atfootnote 5, and _Secretary_ v. _Cerro Metal Products,_ __ OSAHRC __, 12BNA 1821, CCH ? 27,57(?) (1986) (relied on by respondent in its replybrief), where the supervisor witnessed the employees conforming to thework rule (shutting down a press before maintenance work) and, in hisabsence, breaking the rule without the supervisor knowing it. That factdistinguishes that case from the fact pattern shown on this record.On the contrary, here respondent excuses its supervisor from allowingwork to go forward without warning of an obvious danger. Thus, I agreewith Compliance Officer Yi’s final conclusion, after a first andopposite impression, that the manual is in theory only an excellentsafety program. Because respondent relies so heavily on the employee’scompliance with his sections in denigration of the supervisor’sresponsibility, the end purpose of the manual is not accomplished. Andthat reliance is overemphasized and misplaced. _REA Express,_ above atfootnote 8.I do not find that the record will support complainant’s firstcontention, namely, that the training of the employees was inadequate inany way or so remote in time to account for the event of May 21. BothMr. Taylor and Mrs. Theroux knew and observed the rule in the past andit was posted on the substation’s gate. Rather, I conclude that anemployee’s violation of a company rule can be foreseen and prevented bystricter and more exact supervision which is certainly required when menare working in a lethal environment. Such prevention is envisioned inthe respondent’s manual since it imposes on its supervisor’s the\”definite\” responsibility for safety and specifies that his inspectionsof worksites are \”essential to prevent accidents\” (Manual, section 1,Items 1a and 1c).In_Brock_ v. _L. E. Myers_ (No. 86-3215, 6th Cir., 5\/13\/87), a situationwhere a supervisor ignored, at best, and contradicted, at worst, thecompany’s safety manual, the court concluded its decision stating:We emphasize … that the employer [relying on the defense of’unpreventable employee misconduct] must demonstrate that [safety]program’s effectiveness in practice as well as in theory. (Slip Op.,page 13)Here, I find and conclude, that respondent’s reliance on its employeesto finally determine the boundary of a safe work area nullifies theeffectiveness of the all- encompassing safety manual and renders asmeaningless the supervisor’s duty of ensuring that accidents do nothappen. Respondent’s defense is deficient and fails. The citation isaffirmed in the order below.The proposed civil penalty[[11\/]] of $1,000 appears to be based on thegravity of the violation and the fact that respondent was aware of theclearance problems (history) generally at the substations based on the1982 incident. It does not seem to take into account respondent’s goodfaith in terms of the effort it has expended and the emphasis it placeson safety overall. I find that it is cooperative with safetyorganizations (like OSHA) and committed to safety. _Secretary_ v._Nacirema Operating Co.,_ 72 OSAHRC 1\/B10 (1\/33), 1 BNA OSHC 1001, CCH ?15,032. Taking this into account, I conclude that a civil penalty of$500 is appropriate._ORDER: _Based on the findings of fact and conclusions of law reached afterconsidering the evidence and the parties’ arguments and proposals, whichto the extent shown are adopted or rejected as having insufficientsupport in the preponderance of the evidence or precedent, it is ORDEREDthat the citation Issued September 11, 1985, alleging a violation of 29U.S.C. ? 654(a)(1) is affirmed and a civil penalty of $500 is assessedtherefor.DAVID J. KNIGHTJudge, OSHRCDated: July 1, 1987Boston, Massachusetts————————————————————————FOOTNOTES:[[1\/]] Section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), provides:Each employer…shall furnish to each of his employees employment and aplace of employment which are free from recognized hazards that arecausing or likely to cause death or serious physical harm to his employees.[[2\/]] Lightning arrestors are devices designed to protect electricalequipment at a power station against overloading by taking a surge ofpower from lightning and bringing it to the ground. The record does notindicate why the lightning arrestors were energized.[[3\/]] A stand-off insulator is a device that maintains physicalseparation between an energized electrical line and the steel supportingframework of the substation.[[4\/]] A cut-out is essentially a switch that opens and closes anelectrical circuit.[[5\/]] A substation is a large facility containing transformers andbreakers on steelwork. The facility is enclosed by a locked link fence.The equipment receives electrical power at high voltage and lowers it toa voltage usable by customers.[[6\/]] The other foreman in charge of the site, Edwin Raines, also mayhave met with the crew shortly before the fatal accident. Unfortunately,Raines died before the hearing, and Theroux could not recall when Raineshad arrived at the site. Theroux did testify, however, that Raines hadnot warned the crew about the lightning arrestors.[[7\/]] At the time, Taylor was not wearing his protective gloves.Nevertheless, the record indicates that the gloves would not haveprotected him from the voltage involved.[[8\/]] According to this table, the minimum working and clear hot stickdistance for parts energized at 15.1 to 35 kilovolts is 2 ft. 4 in.[[1\/]] 29 U.S.C. ? 654(a)(1):Each employer(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;[[2\/]] \”Congress intended to require [by the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651, _et seq._, and this section inparticular] elimination of only preventable hazards.\” _National Realty &Co., Inc._ v. _OSHRC,_ 489 F.2d 1257 (1973) at 1266. That is the meaningof \”free\” and it avoids the imposition of strict liability. Id., at1266, note 36.[[3\/]]_Secretary _v._Paul Betty d\/b\/a Betty Bros.,_ 81 OSAHRC 18\/B11, 9BNA OSHC 1379, 1981 CCH OSHC ? 25,219 (1981).[[4\/]] Whether the hazard was \”recognized\” [29 U.S.C. ? 654(a)(1)] andcould cause serious harm or death are admitted and not in issue asdetailed below. (Transcript, hereinafter Tr., 5\/21, 128)[[5\/]] This is the complainant’s burden which remains with him despiterespondent’s affirmative defense of unpreventable employee misconduct.Complainant does not rely on the fact that supervisors participated toshow foreseeability but offered proofs on insufficient training and laxsupervision. See _Pennsylvania P & L_ v. _OSHRC,_ 737 F.2d 350, 357-358(3d Cir. 1984)[[6\/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651 _et seq., _citations are issued after inspection and may becontested within a 15-working-day period. 29 U.S.C. ?? 658 and 659(a).[[7\/]] The citation notes that abatement occurred during the inspection.[[8\/]] So that any procedural difficulty borne of the complaint’sfailure to allege an ineffective safety program as a specific abatementcreated no prejudice to respondent or hampered its defense.[[9\/]] Hence the statutory responsibility is far greater than the commonlaw duty of employer to employee. _REA Express, Inc._ v _OSHRC,_ 495F.2d 822 (1974) at 825. The employer may not rely on the employee toexercise reasonable care. He must take steps to ensure it.[[10\/]] A spot, visual inspection was deemed inadequate as a diligenteffort to determine whether employees wore insulating gloves_underneath_ their protective gloves. _Secretary_ v._New EnglandTelephone Co.,_ 830 OSAHRC 29\/DIZ, 11 BNA OSHC 1501, CCH ? 26,535 (1983)(Chairman Rowland dissenting).[[11\/]] These are finally determined by the Commission based on theviolation’s gravity and the good faith, history and size of therespondent. 29 U.S.C. ? 666(i).”