“Docket No. 85-1118 SECRETARY OF LABOR,Complainant,v. CONNECTICUT LIGHT & POWER COMPANY,Respondent.OSHRC Docket No. 85-1118DECISION Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The issue in this case is whether Connecticut Light & PowerCompany (CL & P) violated the \”general duty clause,\” section 5(a)(1) [[1\/]]of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678, by failing toadequately rain and supervise employees who work in proximity to energized electricalequipment. We conclude that CL & P adequately trained and supervised its employees.Accordingly, we reverse the decision of the administrative law judge and vacate thecitation.This case arises out of a fatal accident that occurred when one of CL & P’s leadelectricians was electrocuted after contacting an energized lightning arrestor.[[2\/]] OnMay 21, 1985, CL & P sent a crew, consisting of lead electrician Robert Taylor andsubstation maintenance electrician Peter Theroux, to replace a stand-off insulator[[3\/]]and three cut-outs[[4\/]] at the Rood Avenue substation[[5\/]] in Windsor, Connecticut.Before beginning their task, the crew had to carry out their switching instructions, whichmade it possible for them to deenergize the areas to be worked upon and to reroute thepower to avoid an interruption of service to a nearby shopping mall. Switchinginstructions are a set of orders that show every step necessary to de-energize andelectrically isolate the equipment that will be worked on. Switching instructions are alsodesigned to reroute power to avoid interruptions in service. These instructions arewritten by system dispatchers, technicians, or engineers and are individually written foreach work assignment. Although the instructions are written by employees who may nevereven have seen the worksite, onsite personnel are involved in implementing theinstructions. Thus, every step of the procedure is called into the dispatcher whencompleted by the onsite maintenance workers. Clearance is then obtained from thedispatcher to go on to the next step.While the crew was carrying out their switching instructions,they were visited 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 didnot discuss safety matters.After completing the switching instructions, Theroux attachedgrounds above and below the cut-outs to be replaced. The crew then placed their ladder onthe steel support framework to the right of the stand-off insulators and cut-outs, whichwere located 15-20 feet above the ground. After replacing the first cut-out, the crewmoved the ladder between the middle and extreme left sets of insulators and cut-outs.Taylor climbed the 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 thearea to assess the job and determine what safety hazards might be encountered. Even thoughTheroux himself later testified that the lightning arrestors were obvious (\”it sticksout like a sore thumb\”), the crew never noticed them at the time. Theroux could notexplain why the lightning arrestors were overlooked. He testified, however, that beforework begins, the electricians construct an imaginary \”bubble\” around the workarea and determine whether anything within that bubble is energized. He speculated thatthe lightning arrestors 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 anypart of their body, or reach with any conducting object, nearer than 30 inches fromequipment energized at that voltage. Here, the lightning arrestors were 30-32 inches fromthe equipment to be worked on. Therefore, they would have been at or just beyond theperiphery of the \”bubble\” visualized by the crew.As a result of an OSHA inspection and investigation conductedafter the accident, a citation was issued alleging that CL & P had violated section5(a)(1) of the Act because employees were exposed to the hazard of electrocution by cominginto contact with the energized portion of lightning arrestors. The citation emphasizedthat the employees were working without protection from overhead energized parts, andspecified four alternative steps CL & P could have taken to protect the employees:(1) Deenergize and ground the energized parts at points ofwork;(2) Guard or insulate the energized parts from the employees;(3) Guard or insulate the employees from the energized parts bythe wearing of appropriate personal protective equipment or the equivalent; or(4) Maintain the minimum safe working and clear hot stickdistance, as shown 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 safetyprogram, employees were required to take the protective measures listed in the citation.Accordingly, the hearing focused upon the adequacy of the safety program as a means ofeliminating the cited hazard and the adequacy of supervision.CL & P’s \”Accident Prevention Manual\” requiresemployees to take the safety measures set forth in the citation. As part of the employees’training, they are expected to undertake a periodic, word-by-word review of the manual.Both Theroux and Taylor had taken part in the most recent review; this occurred in late1983, approximately one year before the accident. Another review was scheduled for 1986.CL & P also conducts regular monthly safety meetings where attendance is mandatory.The meetings generally last between five minutes and two hours, depending on the topicbeing discussed. At these meetings, supervisors review accidents that occurred throughoutthe country, examine \”close calls\” within the company, and discuss a widevariety of topics, such as protective equipment, switching and tagging, and use of rubbergoods. Also, employees are given an opportunity to discuss any safety problems that theymight have encountered. Each area within the company has a safety committee composed ofemployee representatives from each department. These committees evaluate safety by goinginto the field and visiting work areas.It is the duty of the supervisors to make sure that jobs areperformed safely. To carry out this responsibility, foremen visit the sites, hold safetymeetings, and institute safety incentive programs. During a site visit, the supervisor hasthe responsibility of pointing out hazards that may be encountered.Although supervisors are ultimately responsible for seeing thatwork is performed safely, the company also places substantial responsibility on the workcrews for assuring their own safety. For example, a crew leader is expected to assess thework site for potential difficulties before beginning a job. It is also up to the crew todetermine if safe clearances can be maintained from energized equipment or if theequipment should be de-energized. To enforce its safety rules, CL & P has a policy of progressive penalties varying withthe type of violation. Ordinarily, the first step is a verbal warning, followed with aletter placed permanently in the employee’s file. Continuing offenders could be suspendedand, ultimately, fired. Fillmore Bain was the Area Superintendent of the Hartford AreaWork Center for CL & P at the time of the accident and, at the time of the hearing,was the company’s Director of Occupational Safety and Health. He testified that, in histhree years with the company, he has made sure that employees received letters ofreprimand when this sanction was called for, but he was unaware of any instance where anemployee had been either suspended or fired. He also testified that, before the incident,CL & P’s Hartford Area Work Center, of which the Windsor facilities are a part, hadgone two years without a lost-time accident.It was undisputed that CL & P’s safety program, asreflected by its safety manual and training program, required its employees to follow theprecautions set forth in the citation and that, on paper, the company had an excellentsafety program. The Secretary contends, however, that the safety program was deficient intwo primary areas: training and supervision. That the employees failed to detect andcomprehend the hazard posed by the lightning arrestors is strong evidence, in theSecretary’s view, that the safety training provided by the company was deficient. Further,the Secretary contends that the failure of the foremen to point out the hazard posed bythe arrestors when they visited the site indicates a lack of proper supervision.In affirming the citation, the judge held that the company hadfailed to establish, as an affirmative defense, that the accident was the result ofunpreventable employee misconduct. Although the Judge found no fault with the safetytraining given employees, he agreed that the Secretary had established that the hazardwould have been both foreseeable and preventable if the company had exercised adequatesupervision. In so finding, he agreed with the compliance officer that, while on paper CL& P had an excellent safety program, in practice the program was lacking, primarilybecause it overemphasized employee compliance with safety requirements at the expense ofsupervisory responsibility.We see this case differently. To establish a section 5(a)(1)violation the Secretary must prove (1) that a condition or activity in the employer’sworkplace presented a hazard to employees, (2) that the cited employer or the employer’sindustry recognized the hazard, (3) that the hazard was causing or likely to cause deathor serious physical harm, and (4) that feasible means existed to eliminate or materiallyreduce the 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 OSHC 1833, 1835,1986-87 CCH OSHD ? 27,605 at p. 35,871 (No. 82-388, 1986). In this case, there is nodispute that CL & P recognized the hazard posed by the energized lightning arrestorsand that the hazard was likely to cause death or serious physical harm. The disputedquestion is whether the Secretary established that the company’s abatement methods wereinadequate or that there was a more effective means by which CL & P could have freedthe workplace of the hazard.When elimination of a recognized hazard requires employees tofollow safe procedures, an employer is not in violation of section 5(a)(1) if it hasestablished workrules designed to prevent the hazards from occurring, has adequatelycommunicated the workrules to the employees, has taken steps to discover noncompliancewith the rules, and has effectively 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 orsafety program are not adequate to eliminate a recognized hazard, then the burden is onthe Secretary to indicate the additional steps the employer should have taken to avoidcitation, and to demonstrate the feasibility and likely utility of these measures. NationalRealty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267-68 & n.40 (D.C. Cir.1973); Cerro Metal Products Div., Marmon Group, Inc., 12 BNA OSHC 1821, 1822,1986-87 CCH OSHD ? 27,579, at p. 35,829 (No. 78-5159, 1986). In addition, the Secretarymust show that knowledgeable persons familiar with the industry would regard theseadditional measures as necessary and appropriate in the particular circumstances existingat the employer’s worksite. Cerro Metal Products. 12 BNA OSHC at 1822-23, 1986 CCHOSHD at p. 35,829.Thus, the judge’s holding that the burden was on the employerto show the adequacy of its safety program and that CL & P had failed to sustain thisburden was incorrect. Cerro Metal Products, 12 BNA OSHC at 1823, 1986 CCH OSHD atp. 35,829. See Western Massachusetts Electric Co., 81 OSAHRC 63\/B13, 9 BNA OSHC1940, 1944-45, 1981 CCH OSHD ? 25,470 at pp. 31,765-66 (No. 76-1174, 1981) (elements ofunpreventable employee misconduct defense, which applies to cases under section 5(a)(2)alleging violations of OSHA standards, are part of Secretary’s burden of proof in section5(a)(1) cases). We conclude instead that the Secretary failed to meet her burden ofproving the inadequacy of the safety program because she failed to establish either thatthe accident was the result of inadequate training or that more exact supervision by theforemen would have been both feasible and useful.The evidence establishes that the employees were trainedadequately to recognize the hazard posed by the energized lightning arrestors. Bothemployees were accomplished electricians with years of experience on the job. Leadelectrician Robert Taylor had been with the company for ten years and had a spotlesssafety record. Peter Theroux had been with CL & P for 14 years, including 4-1\/2 yearsin substation maintenance, and on occasion, he had performed as a lead electrician. Notonly was the job routine but, as Theroux testified, it took place at a substation at whichhe had worked many times before. Theroux further testified that he was fully aware of thehazard posed by energized lightning arrestors and of the need to maintain properclearance. He claimed that, if he or Taylor had been aware of the arrestors, they wouldhave had them de-energized before proceeding with the job. Theroux also stated that theywere not put under any time pressure to complete their job, and that de-energizing thelightning arrestors would have taken only fifteen minutes. Yet, the record conclusivelyestablishes (through witness testimony and photographic exhibits) that the lightningarrestors were plainly visible and obviously energized. Accordingly, neither Theroux norany of the other witnesses could explain how the crew had failed to notice the lightningarrestors. The evidence establishes that the crew’s failure to observe thearrestors was the result of unpredictable, and thus unforeseeable, employee error: it wasnot caused by the crew’s failure to understand the hazards involved or the precautionsthat were necessary and was therefore not due to a lack of training. The crew was fullyknowledgeable about the hazard presented by the lightning arrestors. There is no evidencethat additional training would have made them more cognizant of the hazards posed by thearrestors or more likely to take precautions against the hazard.The Secretary next argues that, when the foremen visited thesite, they should have noted that, because of the proximity of the cut-outs to thelightning arrestors, the work could not be done without violating the clearancerequirements. The Secretary faults the foremen for not recognizing that the arrestorswould not be de-energized during the switching procedure and for failing to instruct thecrew to have the arrestors de-energized. The Secretary contends that the absence of awarning of the hazard presented was due to inadequate supervision and the company’s policyof relying too heavily upon the safety consciousness of its employees.We disagree, and find that the company was justified in relyingon this skilled and practiced crew to discover the hazard and take proper precautions. Asalready noted, both employees were highly experienced and well trained, and both hadexcellent safety records. Additionally, Theroux had worked at that substation on numerousoccasions and could reasonably have been expected to have been familiar with itsconfiguration. Moreover, when foreman Pilver visited the site, the crew was stillperforming switching procedures. Therefore, he had neither actual nor constructive noticethat the crew was unaware of the arrestors.This was not a situation involving an unusual, hidden, oreasily overlooked hazard. Rather, the hazard was open and notorious. The work wasconsidered routine. To hold that, under the circumstances of this case, the foremen shouldhave warned the crew about the arrestors would be tantamount to placing upon supervisorsthe duty to warn employees about every conceivable hazard that may be encountered at everystage of a job, regardless of how basic and obvious the hazard might be and regardless ofhow well-trained and experienced the employees might be. As stated by the United StatesCourt of Appeals for the District of Columbia, in vacating a similar section 5(a)(1)citation:Hazardous conduct is not preventable if it is so idiosyncraticand implausible in motive or means that conscientious experts, familiar with the industry,would not take it into account in prescribing a safety program. Nor is misconductpreventable if its elimination would require methods of hiring, training, monitoring, orsanctioning workers which are either so untested or so expensive that safety experts wouldsubstantially concur in thinking the methods infeasible.National Realty & Construction Co. v. OSHRC, 489F.2d at 1266.An employer is justified in placing a great deal of reliance onthe judgment of highly experienced and trained employees with good safety records. CerroMetal Products, 12 BNA OSHC at 1825, 1986-87 CCH OSHD at p. 35,832. There is noevidence that, given the experience and record of these employees and the obvious natureof the hazard, any knowledgeable person familiar with the circumstances would haveanticipated that the crew would overlook the lightning arrestors. Moreover, the Secretaryhas failed to present any evidence that such a level of supervision would be eitherfeasible or reasonable, or that the level of supervision provided by the company fellshort of what conscientious persons familiar with the industry would employ.Accordingly, it is ORDERED that the judge’s decision is reversed and the citation isvacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 26, 1989SECRETARY OF LABOR,Complainantv.CONNECTICUT LIGHT & POWER COMPANY,RespondentOSHRC Docket No. 85-1118Decision & OrderAppearances: For the complainant:Albert H. Ross, Regional SolicitorU. S. Department of Labor, Boston, MA BY: David A. Snyder, Esq.For the respondent: Dean M. Cordiano, Esq.Day, Berry & HowardHartford, CTThe Issue:A lead electrician with 10 years’ experience suffered fatalinjuries at a substation when he, in violation of his employer’s safe clearance (distance)rule, came too close and actually contacted an energized lightning arrester. As a result,his employer was charged with a violation of the general duty clause [29 U.S.C. ?654(a)(1)[[1\/]] because the workplace it provided was not \”free\” of recognizedhazards as that term has been defined.[[2\/]] The essential defense is based uponunpreventable employee misconduct.Since, ultimately, \”…effective safety enforcementrequires a diligent effort to discover and discourage violations of safety rules byemployees,\”[[3\/]] the factual issues presented, proofs directed to, and argued are:1) Were respondent’s employees sufficiently educated andtrained in the company’s safety manual; and2) Were respondent’s two supervisors, who visited thesubstation separately before the electricians there set up the ladder to approach the areawhere the job was to be done, remiss in their functions (so that, statutorily, theworkplace was not \”free\” of the hazard) by failing to point out the proximity ofthe lightning arresters to that area and reminding the electricians of the safeguards tobe observed.[[4\/]]If the electrician’s training was flawed so that he did notcomply with the respondent’s safety manual; or if the two supervisors should have warnedthe electrician of the danger, then, in either case, complainant has carried his burden ofproving the alleged violation was foreseeable and could have been prevented.[[5\/]]To rebut this, respondent must show that it (1) has established work rules designed toprevent the alleged violation; (2) has adequately communicated these rules to itsemployees; (3) has taken steps to discover violations; and (4) has effectively enforcedthe rules in instances of their violation. Secretary v. Marson Corp., 82OSAHRC 29\/C4, 10 BNA OSHC 1660, CCH ? 23,629 (1982).Based on my findings and conclusions below, respondent hasfailed to rebut complainant’s proof of inadequate supervision and the citation isaffirmed.Statement of Proceedings:Two electricians employed by respondent, Connecticut Light& Power Company, a manufacturer and distributor of electricity in Connecticut, wereassigned to its Rood Avenue substation in Windsor, Connecticut, to perform routinemaintenance work. An accident occurred and over the period of June 10 to July 17, 1985,complainant, the Occupational Safety and Health Administration of the U. S. Department ofLabor, conducted an inspection and investigation. As a result, on September 11, 1985, acitation was issued [[6\/]] alleging a violation of the general duty clause (note 1, above)in that employees were exposed to the hazard of electrocution by coming in contact withenergized portions of lightning arresters of approximately 23,000 volts withoutprotections while replacing 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 partswith personal protective equipment; or4. Maintain the minimum safe working distance shown at tableV-1 of 29 C.F.R. ? 1926.950.A civil penalty of $1,000 is proposed and immediate abatementwas required. [[7\/]]Respondent’s notice of contest is dated September 27, 1985, andbrings all aspects of citation into contest. It also broaches the ultimate defenseclaiming that the incident \”was an isolated case of an employee’s failure to abide bywell established and consistently enforced safety rules.\”The matter was heard on March 20 and 21, 1986, with bothparties represented by counsel. No employee or his organization claimed party status afterdue notice (Tr. 5\/20, 4). Respondent admitted the jurisdictional facts alleged in thecomplaint that it is an employer having employees and that it affects interstate commerce(Tr. 5\/20, 4-5). Hence the Commission’s power to decide this case is established. 29U.S.C. ?? 652(3), (5) and 653(a). Post-hearing proposals and reply briefs were filed bySeptember 5, 1986.The Evidence:On May 21, 1985, lead electrician Robert Taylor and substationmaintenance electrician Peter Theroux were assigned with one other electrician to replacethree stand-off insulators (which separates a live conductor from the steelwork on astructure) and three cut-outs (or disconnects, a switch and fuse, in this case located ona structure 15 feet up, which opens or closes a circuit) at the Rood Avenue, Windsor,Connecticut, substation. A substation is a large facility containing transformers andbreakers on steelwork enclosed by a link fence and kept locked where the equipment willreceive power and lower it to a voltage usable by customers. The foreman, Louis Pilver,made the assignment and the 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 thissubstation on three incoming lines (Tr., 5\/20, 29, 30). Photo exhibit C-5 shows thissubstation (Tr., 5\/20, 20). The cut-outs, stand-off insulators and lightning arresters areclustered together and depicted close-up and marked on photo exhibit C-6 (Tr., 5\/20, 26-27, 66).The lightning arresters will take a surge of power fromlightning and bring it to ground without blowing the fuse and protects the equipment fromthese surges. They are about two feet tall, six to eight inches in diameter and are madeof porcelain with steel caps. (Tr., 5\/20, 27-28)As shown on photo exhibit C-8, three clearly visible taps(lines) run from the incoming conductors to the lightning arresters (Tr., 5\/20, 31). Thatthese are connected from the conductor to the arresters indicate, without doubt, that thearresters are energized (Tr., 5\/20, 102, 112).The distance from the stand-off insulators and cut-outs(equipment which was to be worked on) to the lightning arresters (which were not to beworked on) was approximately 30 inches according to respondent’s Director of OccupationalSafety and Health Bain. (Tr., 5\/20, 236). Complainant’s Compliance Officer Yi, from theblueprints, was told that the distance was 32 inches (Tr., 5\/21, 154-155). No actualmeasurements of the distances were taken since to do so, the substation would have to betotally de-energized and this was not deemed necessary (Tr., 5\/21, 150-151).According to the respondent’s safety manual (exhibit R-1), adistance of 30 inches or as stated there, a clearance of 2.5 feet, must be maintained fromenergized parts of 23,000 nominal phase to phase voltage (R-1, page 39, section 27, andTr., 5\/20, 120). No part of the employee or his equipment, including the ladder, may comewithin that space (Tr., 5\/20, 122-123). A sign, stating the required distances for thedifferent voltages, is posted on the substation’s gate (Tr., 5\/20, 111 and photo exhibitR-9).Both electrician Theroux and his crew supervisor Pilvertestified that the work assignment could not have been accomplished without violating theclearance rule while the lightning arresters remained energized or not otherwise protectedagainst (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 to tie it off(photo exhibit C-7). No one actually witnessed what next happened (Tr., 5\/20, 88), but hecontacted an energized part, was severely injured and did not recover (exhibit C-12). Bothparties agree that Mr. Taylor came into contact with the lightning arrester (Complainant’sBrief, page 6, and respondent’s proposed finding no. 25). He was not, when he went up theladder, wearing protective gloves (Tr., 5\/20, 75).The men had de-energized only the equipment to be repairedfollowing the switching instructions, a process requiring about three hours (exhibitC-14), had so notified the dispatcher, and were cleared to actually perform the work (Tr.5\/20, 49). After attaching grounds above and below the first cut-out (on the right ofphoto exhibit C-6), Mr. Theroux removed the stand-off insulator, tested the switch(handle) of the cut-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 mentallyconstructed a \”bubble\” around the pieces to be worked on. This enveloped hissafe area and included the insulator and cut-out. What he had to do would not take himinto the clearance area between those pieces and the arrester, i.e., the latter wasoutside of the bubble. Later he realized he could not have avoided invading the safeclearance distance. (Tr., 5\/20, 107-108)The lightning arrester, close by, never came into his line ofvision (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 written by the compliance officer, Mr.Yi, was inaccurate insofar as it indicated that both he and Mr. Taylor saw the arrestersand thought them to 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 not mention thearresters, barriers or personal protective equipment (Tr., 5\/20, 109-110). Now, withhindsight, the arrester sticks out like a \”sore thumb\” (Tr., 5\/20, 109).After he came off the ladder, Mr. Theroux and Mr. Taylor movedit to a position between the other two insulators (photo exhibit C-6). Mr. Taylor went upto tie it off while Mr. Theroux prepared the grounds to be attached when the accidentoccurred. (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 the steps to be takenby individual number in the order they are to be taken and the sheet is initialed by theelectrician doing them and the time done. The accomplishment of each step is called intothe dispatcher and then the next step will be assigned. The sequence of the instructionsmust be strictly followed by each crew involved. They are always written even in the caseof emergency and are prepared by the dispatchers or engineers. (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). Theinstructions, prepared by the dispatcher, had been checked by Mr. Pilver, this crew’ssupervisor (Tr., 5\/20, 125). They are not complicated (Tr., 5\/20, 113) and Mr. Taylor,too, checked them thoroughly and made out all of the tags to be attached to the equipmentto be sure that no one would improperly energize any circuit (Tr., 5\/20, 73-74).Mr. Taylor read the instructions and Mr. Theroux opened andclosed the subject switches (Tr., 5\/20, 85-87). After the area was de-energized, thevarious pieces were tested and partially grounded in case they should become energized(Tr., 5\/20, 76-77).According to respondent’s Director Bain, these instructionswould not include de-energization of the lightning arresters as part of the job’spreparation. Rather, they prepare for the work electrically only. The schematic integrityof the switching has no application to the physical characteristics of the work’senvironment be it on a pole, in a manhole or out at a substation. (Tr., 5\/21, 10-12) As\”an industry approach\” (Tr., 5\/21, 22, lines 24-25) switching instructions referonly to the equipment being worked and takes only that out of service to avoidinterrupting other services (Tr., 5\/21, 22-23). Other witnesses, all in respondent’semploy, testified to the same effect (Kost, Director of OS&H, Tr., 5\/21, 110, 138;Pilver, crew supervisor, Tr., 5\/20, 140, 146, 169-170, 202)In fact, however, Director Bain explained, the switchinginstructions would put the men on notice that the lightning arresters would remainenergized unless they took some protective step. By opening a certain switch at thesubstation (step 14 on C-14, the switching instructions), the 2N17 feeder line (23,000volts) would bypass the substation to continue its service to a large shopping center.That line then remained under load and was visibly tapped into the lightning arresters.(Tr., 5\/21, 25-28)But, according to Mr. Theroux, he and Mr. Taylor should havespotted the danger of the proximity of the arresters to their work area. He would notexpect a foreman to tell them about it unless they saw it, nor would he expect to havethem covered by the switching instructions. It is the responsibility of the electriciansto examine their areas to be sure they 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. Theroux were performingthe switching when the ladder had not been put up. (Tr., 5\/20 375, 205). Mr. Theroux didnot remember when Mr. Raines arrived or what operation was being done. Neither supervisorgave any instruction concerning safety or personal protective equipment or the arresters.(Tr., 5\/20, 49, 50, 53)Mr. Pilver visits all work sites and checks safety. At thissite, he discussed only the necessity to replace all three cut-outs and nothing aboutsafety or the arresters which were obvious from the ground. Otherwise he did not check thesubstation.Mr. Pilver would have done the job as the men did, that is,with the ladder where they placed it even though there were other options but with thearresters 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 betreated as energized unless otherwise determined (exhibit R-1, page 30, item 21m). Anyline is subject to this, and Mr. Theroux never violated this mandate. (Tr., 5\/20, 91, 100)He did not assume these arresters were de-energized; he simply did not notice them (Tr.,5\/20, 101-102). In his experience, it is \”very\” unusual to work within the safeclearance distance without some protection (Tr., 5\/20, 118, line 20). It would haverequired only about 10 minutes to call in the overhead (line) crew to detach the taps andthereby render the arresters dead. No work would have been done until that crew finished.(Tr., 5\/20, 72-73, 104-105)But, to the contrary according to Director Bain, it is notunusual for man to find themselves too close to an energized line. Then, all work Stopsuntil the problem is resolved. (Tr., 5\/21, 32-33) A videotape (exhibit R-10) was shown inwhich Mr. Bain described four lines of defense to avoid the incident of May 21, 1985, noneof which were taken then: 1) Before any switching was done, the arresters should bede-energized; 2) After the switching, but before grounding the pieces, de-energize thearresters; 3) Test and verify that both sides of the work area were de-energized; or 4)Identify any lines within the proximity of the work area and barricade them. In assessingtheir circumstances, the closeness of the arresters is noted and all work would halt untilthey are without energy. (Tr., 5\/21, 35-37, 38)The training required to achieve the status of electrician covers a four- year period.Essentially, it is on-the-job training. A two-man crew will be headed by a leadelectrician and more than that will have a crew chief. The level above that is the foremanthen the substation supervisor. (Theroux, Tr., 5\/20, 41-42, 95) Of Mr. Theroux’s 14 yearsexperience, he, too, had served as lead electrician for about three years (Pilver, Tr.,5\/20, 14, 198).The training program itself, \”Planned Progression ProgramElectrician\” (exhibit R-8) indicates that five years are required as training beforethe level of electrician is reached. For 18 months, the employee helps in all phases ofthe work and learns to identify tools, equipment and their uses (levels C-1 to C-3); thenfor 18 months, he assists in specific and detailed work and testing (levels B-1 to B-4);and from his 36th month to 60th, he will perform switching and testing and will doinstallation, maintenance and repair work (levels A-1 to A-3). In addition, formalelectrical and related courses are taken throughout. (See third page of exhibit R-8)The Employee is rated as he goes along and Mr. Taylor completedthis training (Tr., 5\/21, 67, 68-69). In fact, Director Bain commented, he performedduring his training and as a journeyman \”in an exemplary manner\” (Tr., 5\/21, 69,lines 9-10) being very conscientious, precise and 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 optionsto avoid this and Mr. Taylor’s last completion occurred in 1983. This is a formal andchecked procedure. (Tr. 5\/21, 57 and exhibit R-3) Particularly, his review of the courseson clearances (exhibit R-2) occurred in March 1982 (Tr., 5\/21, 98). Mr. Pilver testifiedthat he took groups of employees, four or five, and reviewed each chapter of the manualword by word about two years before the accident. Both Taylor and Theroux did this. Hebelieves this must be done periodically by company rule (Tr., 5\/20, 198- 199). Respondentalso conducts incentive programs in which an article from the manual by number only isposted on the board to be reviewed by employees. Mr. Pilver would then approach anemployee and if he knew the subject matter, he would be awarded a prize (Tr., 5\/20, 197).Monthly safety meetings are conducted both at corporate andlocal levels. All types of visual aids are used and all complaints are heard. During thesix-month period preceding the accident, among other subjects discussed were all accidentsor close-calls, switching and hook-ups. (Director Bain, Tr., 5\/21, 58-61) These meetingsare held during normal work 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 in progress and thesecommittees also meet monthly (Tr., 5\/21, 61). Safety tips or bulletins are postedregularly (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 the subsequent offense,4) discharge. This is not rigid but will be governed by the type of violation (Tr., 5\/21,70).Mr. Theroux was not disciplined as a result of the accidentbecause 1) he had not been in charge or responsible and 2) such action would have beenexcessive because he had been close to Mr. Taylor and the message of the event–thepurpose of disciplining an employee–was very clear. But he, Director Bain, and CrewSupervisor Pilver were in that their ratings were affected (financial) because safetygoals 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 was capable of leading this job (Mr. Pilver. Tr., 5\/20, 211-212, and Mr. Theroux,92). The latter testified that no special instructions were given for this job or warningsand the rules concerning protective equipment, barriers, clearances and de-energizing thearresters were standard operating procedures well known to both men (Tr. 5\/20, 34-35). Hehad worked with Mr. Taylor before and never saw him violate a clearance rule (Tr. 5\/20,93). Mr. Theroux had worked at the Rood Street substation many, many times (Tr., 5\/20,96). This job was routine and all of the equipment was familiar (Tr., 5\/20, 98, 115).Mr. Pilver testified that it was the lead electrician’sresponsibility to assure a safe work area beyond that created by the switchinginstructions (Tr., 5\/20, 201); and Director Bain stated that all men were responsible forsafety, to carefully check the area before picking up a tool (Video, exhibit C-16, Tr.,5\/20, 241, 242). The crew had to make the judgment or disconnecting the arresters if theirwork brings them into too close proximity by company rule (Tr., 5\/21, 22). The personreceiving the clearance must insure a safe work area and identify it to all workersaccording 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 theaccident revealed 12 violations by Mr. Taylor of the safety manual (Tr., 5\/21, 41-55,respondent’s proposed findings 48, 51-61). Although Mr. Theroux did not notice thearresters and assumed that the area was de-energized, company rule forbids suchassumptions (Tr., 5\/21, 56). Yet, Director Bain admitted that what went wrong was unknown;\”we missed a very simple thing\” (Tr., 5\/20, 240, line 17); it was a simple joband something (lightning arresters) that should have been seen (Tr., 5\/20, 242 and 5\/21,5). But he does not consider that the supervisors (Messrs. Pilver and Raines) violated thesafety manual in not warning the men about the arresters since neither of them saw theladder in position and where that would place the electricians (Tr., 5\/21, 94).Missing the obvious was the cause, testified Director Bain, ofa couple of close situations encountered in the three months prior to May 1985. But untilDecember 1984, the company enjoyed a two-year period free of any lost time accident. (Tr.,5\/20, 241-242)Robert Kost who had held Director Bain’s position on May 21,1985, and is now Regional Superintendent of Electrical Operations meaning that he hasoverall responsibility for respondent’s entire operation in southwest Connecticut (Tr.,5\/21, 105-107), summarized respondent’s report of the employee injury (exhibit R-4) bystressing two violations committed by Mr. Taylor and Mr. Theroux. Mr. Taylor failed toinsure 1) that the work would be done safely and 2) that the switching did in fact providea safe work area, both aspects being the lead electrician’s responsibility [Manual, ? I,Part I, Page 1, subsection (b)]. And Mr. Theroux, as the worker, was also responsible forascertaining the boundary or a safe work area. (Tr., 5\/21, 130-131)Mr. Kost would not expect Mr. Pilver to rely on his memory ofthe clearances between pieces of equipment at the 40 to 50 substations, each being unique,to warn the electricians; but he is certain Mr. Pilver would have done so had he seen theladder in position. While he is trained to foresee circumstances, each individual workeris also so taught. (Tr., 5\/21, 138, 140)Mr. Pilver, in the Distribution Clearance Request which heprepared (exhibit C-13), did-as a special instruction-require the placement of grounds onboth sides of the subject equipment. The intent of this, according to Mr. Kost, was toestablish the work zone. (Tr., 5\/21, 110-111) By state statute, the Connecticut Department of PublicUtilities is required to report on this type of accident. The engineer making this report(exhibit R-5) found the following violations: improper grounding; a failure to de-energizethe arresters; a failure to wear protective gloves 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 operation or the plant orequipment. (Tr., 5\/21, 134-136)Mr. Kost noted that all of the citation’s abatementrequirements had already 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 in electricalengineering from the University of Hartford and from a university 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 exhibit R-7, OSHAworksheet, page 23. But by the completion of his inspection, Mr. Yi changed his evaluationof the program to inadequate (Tr., 5\/21, 147-148).This change is not reflected on the worksheet but the narrativereport of the compliance officer does suggest that the initial impression was mistaken.There, Mr. Yi read, \”Company has a good safety program for its employees. However,they rely on the individual for job safety analysis.\” (Tr., 5\/21, 166-167, 168, and170 at lines 19-22) The program then, to Mr. Yi, is good only on paper (Tr., 5\/21,148-149, 171) But on the worksheet and note sheet. (exhibit R-15 and the note-takingsheet, exhibit R-16) both of which Mr. Yi was cross-examined on point-by-point, do notreveal any part of the program weak enough to support the downgrade (Tr., 5\/21, 173-178).And this change was not mentioned at the closing conference (Tr., 5\/21, 178)Nonetheless, Mr. Yi testified on several points to justify hisconclusion that the safety program was not adequately communicated to employees: 1) Had Mr. Theroux been adequately trained, he would havenoticed the obvious lightning arresters (that he didn’t, shocked Mr. Yi), and Mr. Taylorwould not have violated all the rules specified by Director Bain; 2) Mr. Pilver did not ensure that the area was safe to workwithin, i.e., the training was inadequate because the arresters were seen and nothing wasdone. Even though the ladder was not in position, supervisors knew what had to be done andshould have examined the substation with that in mind. Mr. Pilver should have requireddisconnecting the taps while the electricians were still in the switching process (Tr.,5\/21, 201-202, 205, 208, 209, 211-212, 217) When Mr. Pilver visited the site he did notproperly investigate or instruct the men; he simply passed the time or \”normal jobtalk\” as Mr. Yi paraphrased Mr. Theroux. (Tr., 5\/21, 149-150, 180-182); and 3) The job was not well coordinated. While the assignment wouldbe to replace an insulator and three cut-outs, the men took only the former with them andwould have to send for the cut-outs had the job been then completed. Too much was left towhat the employee should have understood and not enough direct supervision. (Tr., 5\/21,149)Joseph Barresi, respondent’s superintendent of substationconstruction, testing and maintenance, attended the closing conference on July 17, 1985.According to Mr. Yi, Mr. Barresi stated that–as a result of an incident in 1982 at asubstation in which an employee was killed–the company formed a team to inspect everysubstation for possible clearance problems. That was the main point of the team’sobjective and the Rood Street 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, deniedspecifying Rood Street 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 mentionedabout that station was its upgrading and the necessity to replace a transformer there andremove metal clad switch gear. (Tr., 5\/21, 222, 226-227)Contentions of the Parties, Findings of Fact and Conclusions:Complainant argues that respondent failed to provide aworkplace free of recognized hazards based on four factors:1) The men were required to be within the safe-clearancedistance of the arresters by the very nature of the physical layout of the work area; 2) Respondent, above the level of lead electrician, took nosteps to assure the de-energization of the arresters; 3) No warning was given to the men of the danger before thedanger was encountered and;4) Two crew supervisors inspecting the worksite before the menwere actually exposed to the hazard failed to remind or admonish the men of the obviousperil in their work area. (Complainant’s Brief, pages 8-9)The evidence presented supports these elements; respondent doesnot dispute them; and I find them to be the fact and even though Director Bain indicatedthat the switching instructions would put the men on notice of the live arresters, theyshould have known this by obvious and more immediate signs, i.e, the taps connected tothem from the three conductors.These–coupled with respondent’s acknowledgment that (1) thearresters with their power and proximity to the work area were a recognized hazard which(2) could cause death or serious physical harm and which (3) could have been avoided byany of the four methods specified in the citation \”among others\”–completecomplainant’s proof of his case. Respondent’s attempt to rebut this on the grounds ofunpreventable employee misconduct has not been factually supported.That defense–fully tried out[[8\/]]–also rests on fourfactors: 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 arediscovered. Secretary v. Marson Corp., above. And the defense must bemeasured against the statutory principle that \”…an employer has a duty under theAct to anticipate the hazards to which its employees may be exposed and to take the stepsnecessary 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 sodrawn, complete and understood to effectively protect against a hazard when the rules areproperly 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 of May 21, 1985, aredeficient. Specifically, the Accident Prevention Manual, Section 1 (exhibit R-1):Supervisor’s (above the level of lead electrician)Responsibility for Safety: Item 1(a)1: for safe working conditions;Item 1(a)4: for properly planned work performed in a safemanner;Item 1(a)5: for application of the general and specific safety rules by their workmen; andItem 1(a)7: for immediate steps to correct any violation of safety rules observed….These rules, I find, impose a positive duty on supervisors to know the hazards to be facedby employees in the routine performance of their jobs and to warn those employees againstthem.Since Mr. Pilver testified that the way in which the work wasdone– placement of the ladder–was expected and was the way he would have approached theinsulators and cut-outs, the closeness of the arresters should have been noted and the menwarned of the hazard. That is, planning is anticipation for providing the \”safeworking 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 other employeeson a particular assignment to finally decide whether their work area was safe. And this Ifind to be the fact.That reliance is based on the Safety Manual, section 1, part1b: b. Employees assigned to direct or lead a working crew will be held responsible for seeingthat job procedures are carried out in a safe manner. They shall make certain that the menunderstand 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 suitableprotective equipment as furnished by the Company and seeing that it isproperly used.5. They are responsible for proper planning of work and forascertaining that 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 through5. In falling to account for the closeness of the arresters, they did not encompass thehazards to be encountered in their plan of the work (item 2); their procedure in failingto de-energize them was not proper (item 3); protective gloves were not worn (by Mr.Taylor) up in the work area (item 4); and the work was not properly planned before it wasattempted to 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 ofthe rules was carried out concerning the role played by the supervisors.Framing the specifics of their performance set out above inpart 1a of the manual is first the statement:a. Supervisors have the definite responsibility for thefollowing (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 supervisors andcloses the frame:c. Frequent periodic Inspections of construction, operation andmaintenance equipment, materials, work areas, conditions and methods should be made bysupervisors as a part of their routine duty. Such inspections are essential to preventaccidents.It is clear, then, from the juxtaposition of the employee’s obligations between the dutiesof the supervisors, that the primary safety responsibility is on the supervisor in acertain 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 safeand proper manner; andc) the supervisor inspects frequently and periodically to besure the work is being done correctly to prevent accidents.Total reliance on b) renders a) and c) nugatory or, at best,peripheral and not \”definite\” as the manual specifies. To avoid that result, itis incumbent on the supervisor to plan the work–even during an on- site inspection–withall protections against hazards that he can reasonably foresee.[[10\/]]The arresters were obvious from the ground. The crewsupervisors visited the site before the men entered the work area 15 feet up. Their workwould take them–in the normal and expected course–within the safe clearance distance ofthe arresters. Yet, no word of instruction or warning was given. Respondent’s policy, Ifind, under its safety manual is to rely on the employee’s judgment in this circumstanceand its manual is so interpreted.I base this finding on the testimony of all of respondent’switnesses who, in so many words, stated this interpretation. Additionally, Director Bainrefuted Mr. Theroux’s comment by stating that it is not unusual for an electrician to findhimself too close to an energized part in the course of his work. Further, the Director,in reviewing the company’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 theemployee’s judgement 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 been translated into anoperative procedure since the supervisor has no obligation to warn against the hazards heknows of or actually sees at a site. His responsibility, as far as this record shows,stops at assuring that 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 againstdangers faced by employees. Respondent’s defense of unpreventable employee misconductfails. Its rule, \”Supervisors have the definite responsibility for … safe workingconditions\” (Manual, sec. 1, item 1(a)1), has not been effectuated (understood) toprevent violations by its employees, in this instance, of its safe clearance minimums. Secretaryv. Marson Corporation, above.I conclude that complainant has carried Ms burden. Thepreponderance of the evidence shows that the employee’s violation of the clearance rulewas foreseeable and could have been prevented but for the inadequacy of the safetyprecautions and supervision in its failure to take note of and warn against an obviousdanger. Capital Electric Line Builders, Inc. v. Marshall, 678 F.2d 128, at130. This is not a case where a properly conceived work plan is thwarted by theunanticipated act of an employee, albeit a supervisor. Pennsylvania P & L v. OSHRC,above at footnote 5, and Secretary v. Cerro Metal Products, __ OSAHRC __, 12BNA 1821, CCH ? 27,57(?) (1986) (relied on by respondent in its reply brief), where thesupervisor witnessed the employees conforming to the work rule (shutting down a pressbefore maintenance work) and, in his absence, breaking the rule without the supervisorknowing it. That fact distinguishes that case from the fact pattern shown on this record.On the contrary, here respondent excuses its supervisor fromallowing work to go forward without warning of an obvious danger. Thus, I agree withCompliance Officer Yi’s final conclusion, after a first and opposite impression, that themanual is in theory only an excellent safety program. Because respondent relies so heavilyon the employee’s compliance with his sections in denigration of the supervisor’sresponsibility, the end purpose of the manual is not accomplished. And that reliance isoveremphasized and misplaced. REA Express, above at footnote 8.I do not find that the record will support complainant’s firstcontention, namely, that the training of the employees was inadequate in any way or soremote in time to account for the event of May 21. Both Mr. Taylor and Mrs. Theroux knewand observed the rule in the past and it was posted on the substation’s gate. Rather, Iconclude that an employee’s violation of a company rule can be foreseen and prevented bystricter and more exact supervision which is certainly required when men are working in alethal environment. Such prevention is envisioned in the respondent’s manual since itimposes on its supervisor’s the \”definite\” responsibility for safety andspecifies that his inspections of 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 situation where 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 effectivenessin practice as well as in theory. (Slip Op., page 13)Here, I find and conclude, that respondent’s reliance on itsemployees to finally determine the boundary of a safe work area nullifies theeffectiveness of the all- encompassing safety manual and renders as meaningless thesupervisor’s duty of ensuring that accidents do not happen. Respondent’s defense isdeficient and fails. The citation is affirmed in the order below.The proposed civil penalty[[11\/]] of $1,000 appears to be based on the gravity of theviolation and the fact that respondent was aware of the clearance problems (history)generally at the substations based on the 1982 incident. It does not seem to take intoaccount respondent’s good faith in terms of the effort it has expended and the emphasis itplaces on safety overall. I find that it is cooperative with safety organizations (likeOSHA) and committed to safety. Secretary v. Nacirema Operating Co., 72OSAHRC 1\/B10 (1\/33), 1 BNA OSHC 1001, CCH ? 15,032. Taking this into account, I concludethat a civil penalty of $500 is appropriate.ORDER: Based on the findings of fact and conclusions of law reached after considering theevidence and the parties’ arguments and proposals, which to the extent shown are adoptedor rejected as having insufficient support in the preponderance of the evidence orprecedent, it is ORDERED that the citation Issued September 11, 1985, alleging a violationof 29 U.S.C. ? 654(a)(1) is affirmed and a civil penalty of $500 is assessed therefor.DAVID J. KNIGHTJudge, OSHRCDated: July 1, 1987Boston, MassachusettsFOOTNOTES: [[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 a place ofemployment which are free from recognized hazards that are causing or likely to causedeath or serious physical harm to his employees.[[2\/]] Lightning arrestors are devices designed to protectelectrical equipment at a power station against overloading by taking a surge of powerfrom lightning and bringing it to the ground. The record does not indicate why thelightning arrestors were energized.[[3\/]] A stand-off insulator is a device that maintainsphysical separation between an energized electrical line and the steel supportingframework of the substation.[[4\/]] A cut-out is essentially a switch that opens and closesan electrical circuit.[[5\/]] A substation is a large facility containing transformersand breakers on steelwork. The facility is enclosed by a locked link fence. The equipmentreceives electrical power at high voltage and lowers it to a voltage usable by customers.[[6\/]] The other foreman in charge of the site, Edwin Raines,also may have met with the crew shortly before the fatal accident. Unfortunately, Rainesdied before the hearing, and Theroux could not recall when Raines had arrived at the site.Theroux did testify, however, that Raines had not warned the crew about the lightningarrestors. [[7\/]] At the time, Taylor was not wearing his protectivegloves. Nevertheless, the record indicates that the gloves would not have protected himfrom the voltage involved.[[8\/]] According to this table, the minimum working and clearhot stick distance 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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees;[[2\/]] \”Congress intended to require [by the OccupationalSafety and Health 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 meaning of\”free\” and it avoids the imposition of strict liability. Id., at 1266, note 36.[[3\/]] Secretary v. Paul Betty d\/b\/a Betty Bros.,81 OSAHRC 18\/B11, 9 BNA OSHC 1379, 1981 CCH OSHC ? 25,219 (1981).[[4\/]] Whether the hazard was \”recognized\” [29 U.S.C.? 654(a)(1)] and could 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 himdespite respondent’s affirmative defense of unpreventable employee misconduct. Complainantdoes not rely on the fact that supervisors participated to show foreseeability but offeredproofs on insufficient training and lax supervision. 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, 29U.S.C. ?? 651 et seq., citations are issued after inspection and may be contestedwithin a 15-working-day period. 29 U.S.C. ?? 658 and 659(a).[[7\/]] The citation notes that abatement occurred during theinspection.[[8\/]] So that any procedural difficulty borne of thecomplaint’s failure 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 thanthe common law duty of employer to employee. REA Express, Inc. v OSHRC, 495F.2d 822 (1974) at 825. The employer may not rely on the employee to exercise reasonablecare. He must take steps to ensure it.[[10\/]] A spot, visual inspection was deemed inadequate as adiligent effort to determine whether employees wore insulating gloves underneaththeir protective gloves. Secretary v. New England Telephone Co., 830 OSAHRC29\/DIZ, 11 BNA OSHC 1501, CCH ? 26,535 (1983) (Chairman Rowland dissenting). [[11\/]] These are finally determined by the Commission based onthe violation’s gravity and the good faith, history and size of the respondent. 29 U.S.C.? 666(i).”