“Docket No. 80-6519 SECRETARY OF LABOR,Complainant, v.NEW ENGLAND TELEPHONE ANDTELEGRAPH COMPANY,Respondent.INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, LOCAL 2222, Authorized EmployeeRepresentative.0SHRC Docket No. 80-6519DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:The Secretary of Labor issued a citation to New England Telephone and Telegraph Company(\”N.E.T.&T.\”) alleging violations of two telecommunications standards, 29C.F.R. ? 1910.268(n)(11)(iii)(A)–involving pole guards–and 29 C.F.R. ?1910.268(n)(11)(iv)–involving insulating gloves. [[1\/]] A penalty of $550 was pro posedfor each of the two alleged violations, which were characterized as serious. After ahearing, Administrative Law Judge Foster Furcolo affirmed the pole guard item and vacatedthe glove item. Both parties petitioned for review. Commissioner Cottine granted bothpetitions. We reverse the judge’s decision; we vacate the pole guard item and affirm theglove item.I. FactsThis case involves the replacement of a damaged utility pole that was jointly used byN.E.T.&T. and the local electric power company. A N.E.T.&T. foreman, Lemmo, metwith two experienced linemen, Hanson and Scott, at the N.E.T.&T. garage and assignedthem the task of erecting a new pole. He instructed them to erect the new pole about 3′-4’from the damaged pole. Lemmo described the types and voltages of the wires that they wouldencounter at the site and told then that he had contacted the electric company to get itsassistance. Lemmo also told them that it had been raining overnight and that they shouldnot set the new pole if it were still raining. Lemmo did not discuss with Hanson and Scottthe use of a pole guard, which is an orange, cylindrical cover, approximately 6 feet long,that slides over a pole to insulate it from electrical wires. However, Lemmo testifiedthat as Scott left, he told Lemmo that he (Scott) \”had better get a pole guard.\”At the hearing, Scott testified that although there were pole guards available at thegarage that morning, he did not take one with him because Lemmo had told them that theelectric company would be present and would insulate the wires.At 10 a.m., Lemmo visited the site and found Scott and Hanson waiting for the electriccompany’s crew to finish \”rubbering up\” the electric company’s lines.\”Rubbering up\” means to cover a power conductor with rubber insulating materialknown as \”line hose.\” Scott testified that he was satisfied that the powerconductors in the area where the new pole was to be erected had been completely coveredwith rubber. However, Scott was aware that the electric company crew had not placed alarge rubber cover called a \”pig\” over each round insulator on the old pole. Apig has two purposes: to insulate the electric power conductor that is wrapped around theinsulator and to hold adjacent line hose in place. When the electric company crew hadcompleted rubbering up the power conductors, Lemmo left the site and accompanied anelectric company supervisor to inspect another worksite. When Lemmo departed, Scott andHanson were not yet ready to erect the new pole or to put a pole guard on it.Once the conductors were rubbered up, Scott and Hanson resumed working. Because theyencountered rock, they dug the hole for the new pole about 2-1\/2 feet closer to the oldpole than they had been instructed by Lemmo. Thus, Scott and Hanson set the new pole about1-1\/2 feet from the damaged pole. Hanson then ascended in a bucket lift to secure the twopoles together with wire, a process known as \”lashing.\” Scott later testifiedthat the purpose of lashing is to hold the old pole steady \”because you’re going tocut about a foot above ground level on the old pole and take the bottom of that pole outof the ground.\” He also stated that the two poles usually are brought together nocloser than one foot during the lashing procedure.Although the normal procedure is to slip a pole guard over the top of the new pole beforeit is raised into position, Scott testified that the old and new poles were not protectedby a pole guard, insulating blanket [[2\/]] or box guard, [[3\/]] either when Scott andHanson set the new pole or when Hanson ascended in the bucket to lash the poles together.During the lashing, Hanson was wearing a hardhat, safety glasses and leather work gloves,but not rubber insulating gloves. While in the bucket, Hanson sustained an electricalshock and was seriously injured.N.E.T.&T.’s internal report of its post-accident investigation states: [[4\/]]It was concluded by the committee that Mr. Hanson, working on lashing wire between the newand the old pole, created an electrical circuit through his body. As he proceeded with thetensioning operation the old and the new pole were probably brought together. The exposedbracket on the old pole, which contained one single phase circuit of 7620 volts to ground,was brought into contact with the new pole by his tensioning. His body then conductedelectrical current to an electrical ground. Mr. Hanson’s side was probably leaning againsta CATV strand and he was not wearing rubber gloves. Contact was made at his left side, atapproximately the height of the CATV strand and also in his right hand which probably wasgripping the lineman’s wrench on the lashing wire.Testimony at the hearing also focused on the nature, effectiveness and enforcement ofN.E.T.&T.’s safety program with respect to the use of pole guards and rubberinsulating gloves. N.E.T.&T.’s written safety procedures for placing, or removingpoles near electric power wires explicitly require the use of both pole insulation andinsulating gloves. [[5\/]] Scott and Hanson attended a safety meeting and slidepresentation concerning pole replacement more than two years before the accident. Theaccompanying narrative for the presentation states that:[I]t will be the policy of the Central Division to require that all construction linecrews . . . use B pole guards and rubber gloves when placing or removing poles on or nearjoint owned poles, or on or near non joint owned poles where there is any possibility ofcontact with a foreign voltage . . . All poles placed or removed near power wires must beinsulated . . . All employees handling the pole either with their hands, pike poles orother tools shall wear the appropriate insulating gloves with protectors.Scott and Hanson also attended a safety meeting, film presentation and demonstration onelectrical shock, hazards for linemen and use of rubber insulating gloves two monthsbefore the alleged violations occurred. In response to N.E.T.&T.’s request foradmissions, the Secretary has admitted that N.E.T.&T. adequately trained employees onusing pole guards on new poles when placing, new poles for joint use. The Secretary alsoresponded as follows to two other requests for admissions:Request: The rubber insulating line hose covering the 13.8kV primary conductors on poleNo. 1095 was equivalent to a pole guard on the new pole in preventing contact between thatpole and the 13.8kV conductors.Answer: Yes; not equivalent respecting protection of workers in all circumstances.Request: The rubber insulating line hose covering the 13.8kV primary conductors on poleNo. 1095 on June 30, 1980 was one of the alternative types of protective equipment whichmeets the requirements of 29 C.F.R. 1926.950(c)(1)(ii).Answer: Admitted due to wording.W.C. Cronin, N.E.T.&T.’s construction manager responsible for supervising foremen suchas Lemmo, testified that the company requirement to use pole covers when working on ornear joint poles did not contain an exception for instances in which the electric companyhad rubbered up power lines. He also described N.E.T.&T.’s accident prevention plan,under which foremen make three observations of each employee per month. Cronin himselfmakes five field observations per month, noting positive and negative safety observationson craft employees, including linemen replacing and setting poles. Moreover, in his roleas area manager, Cronin has had occasion to take disciplinary actions–includingsuspension–against employees who commit safety violations. Cronin conceded that linemendo not follow all of N.E.T.&T.’s practices letter-for-letter, but he insisted that heinsures that safety-related items are followed generally. Cronin stated that he had neverobserved an employee working without his gloves where there was a possibility of shock andhad never observed an employee placing a wet pole without using a pole guard.Lemmo, the N.E.T.&T. foreman, testified that a team like Scott and Hanson wouldreplace on average about 2 poles per day, about 600 per year. Lemmo estimated that hewould observe them at least three times per month, although not for the entire duration ofa pole-replacing assignment. Referring to a company document known as a safety knowledgereview and observation card, he noted that Hanson had been observed in 1979 regardingelectrical hazards–including use of rubber insulating gloves and pole guards–on threeoccasions and had not been cited for any deviations from N.E.T.&T.’s safe practicestandards. Hanson also successfully completed an oral, on-the-job review regardingelectrical hazards. Similar safety knowledge review and observation cards were admittedinto evidence covering Hanson in 1980 and Scott in 1979 and 1980. No deviations fromprescribed safe practices were noted regarding electrical hazards.Lemmo also testified that he had observed these employees setting poles before thisaccident; that he had never observed them not wearing their gloves when there was apossibility of contact with electrical wire; that he had never observed them. not using apole guard on a wet pole carrying 13.8kV, except where a pole had broken and all the wireswere down and out of the way; that he had directed Scott and Hanson on prior occasions touse pole guards; and that he had never instructed them, that it was unnecessary to usepole guards in cases where the electric company had rubbered up its lines.Scott testified that he had been a construction head lineman for thirteen years. He statedthat he had set new poles with Hanson 20 times, that it was not his practice to use poleguards, guarding blankets or box guards when tile electric company had rubbered up itspower lines, that he had set 50-100 poles — about 15 to 20 during the six months heworked with Hanson— without insulating them when the electric company had rubbered upits lines, and that it was not his practice to use pole guards except at night. Scott alsotestified that he had believed before the incident that it was proper not to use a poleguard if the electric company had rubbered up its lines.As to gloves, Scott stated that he and Hanson wore insulating gloves when they placed thenew pole in position; that Lemmo did not remind him to do that; that he would have beeninsulted if Lemmo had done so; that he used insulating gloves \”any time there is, inmy mind, any chance or possibility that there could be shock, or voltage or anything likethat\”; that it was not his practice to use rubber gloves during the lashingoperation; that, in determining whether there was a possibility of shock during thelashing operation, he would watch to see if the pole would be pulled into any wires andthat, if the pole came within one foot of the wires, he would either stop lashing or puton insulated rubber gloves before resuming lashing. He also indicated that once the polewas fixed in place, he would not need insulating gloves and that he believed that it wasproper not to use insulating gloves during a pole replacement operation once the pole hadbeen secured because he had in the past performed that operation without gloves. He alsostated that a foreman usually is not present during the pole replacement job, althoughforemen do come around and watch from time to time, and that he had only been disciplinedor reprimanded once in the past for a safety violation–not wearing a safety belt in thebucket.II. The Pole Guard Item A. The Judge’s DecisionJudge Furcolo affirmed the pole guard item. He found that both the old and new poles werewet and that the failure of the electric company to use a pig prevented the rubbering upfrom being \”equivalent protective equipment\” within the meaning of section1910.268(n)(11)(iii)(A). He also found that foreman Lemmo knew or should have known thatboth poles were wet, that he knew \”how close together (3-4 feet) he expected the twopoles would be\” and that he know \”that the new pole would have to be ‘nosed up’through the wires.\” Judge Furcolo further found that \”careful observation\”by Lemmo of the open back of the truck would \”easily\” have shown him that nopole guard had been brought to the worksite. It could also easily be seen that no pigs hadbeen installed. The judge rejected N.E.T.&T.’s argument that section1910.268(n)(11)(iii)(A) is vague. He held that \”equivalent\” has a meaning\”easily and readily understood by the average layman\” and that \”in thecontext in which it is used in the standard, there is little or no chance that it will bemisunderstood or misinterpreted.\”Commissioners Cleary and Cottine agree for the reasons stated in Part II.B thatN.E.T.&T. violated the standard. For the reasons stated in Part II.C., however,Commissioner Cottine agrees with Chairman Rowland that the item should be vacated onanother ground.B. Was the pole guard standard violated?Under the working conditions involved here, the standard states that wet poles \”shallbe insulated with either a rubber insulating blanket, a fiberglass box guide, orequivalent protective equipment.\” There is no dispute that the pole was wet, [[6\/]]or that it lacked an insulating blanket and a fiberglass guard. Inasmuch as there was noinsulation on the pole but there was some insulation on the power conductors, the firstissue before us is whether such insulation can be considered \”equivalent protectiveequipment\” within the meaning of the standard.The Secretary contends that the pole guard standard unequivocally requires the wet pole tobe insulated with \”equivalent protective equipment.\” In his view, usinginsulation on the line is contrary to the standard and is not equivalent to poleinsulation; line hose differs in location, placement, function, and effect. The Secretaryargues that the standard is not vague because the standard says that insulation must be onthe wet pole, and \”equivalent\” is a well understood term. The Secretarymaintains, in this regard, that N.E.T.&T. correctly understood the standard, forN.E.T.&T.’s own rules require that the poles be insulated regardless of the presenceof line hose.N.E.T.&T.’s argument that line hose is \”equivalent protective equipment\”relies heavily on the Secretary’s responses to requests for admissions and the provisionsof section 1926.950(c), the construction standard for power transmission and distributionwork. N.E.T.&T. maintains that inasmuch as the Secretary admitted that the rubberinsulating line hose was equivalent to a pole guard in preventing contact between the poleand the conductors and that rubber insulating line hose alone is sufficient to protectelectric company workers under section 1926.950(c)(1)(ii), [[7\/]] the line hose was\”equivalent protective equipment.\”N.E.T.&T. also argues that if rubber line hose is not \”equivalent protectiveequipment,\” then the meaning of the term is so unclear that it is unenforceablyvague. It maintains that inasmuch as line hose is as effective an insulator as equipmentplaced on the pole, an interpretation of the standard that did not treat them asequivalent would be so unpredictable as to deprive it of notice of what the standardrequires.Commissioners Cleary and Cottine interpret the term \”equivalent protectiveequipment\” as equipment that is placed on the wet pole. [[8\/]] First, the sense ofthe standard is that insulation must be placed on the wet pole, not elsewhere. Second, therecord shows and N.E.T.&T. acknowledges that the two methods of protection specifiedin the standard– rubber insulating blankets and fiberglass box guards–are fitted on thewet pole. This strongly suggests that the term \”equivalent protective equipment\”also refers to equipment placed on the wet pole. Third, section 1910.268(n)(11)(iii)(C), aclosely-related provision which provides an exception to section 1910.268(n)(11)(iii)(A),refers to \”insulation of the pole …..\”The parties have argued the relative merits of placing insulation on the wet pole or onthe lines, and the Secretary’s admissions seem to indicate that line insulation isequivalent under certain circumstances. However, the reasonable reading of the standardand the reading most consistent with its remedial purpose is that insulation must heplaced on the pole under these working conditions. OSHA regulations are to be liberallyconstrued to effectuate the remedial purposes of the Occupational Safety and Health Act,29 U.S.C. ?? 651-678. Whirlpool Corp. v. Marshall,445 U.S. 1 (1980); Bristol Steel &Iron-Works v. OSHRC 601 F.2d 717 (4th Cir. 1979); Brennan v. OSHRC (Gerosa, Inc.), 491F.2d 1340 (2d Cir. 1974). N.E.T.&T. also argues that because section 1926.950(c)(1)permits electric company employees to be protected by line hose alone, thetelecommunications standard before us should be interpreted to yield the same result. Thetelecommunications standard cited in this case is specifically applicable to wet poles andcontains requirements concerning wet poles that are more stringent than the requirementsin section 1926.950(c)(1). It is not the Commission’s role to reweigh the practicalconcerns underlying the Secretary’s regulatory choice in prescribing the additionalrequirements for telecommunications.[[9\/]] Moreover, we note that the Respondent’s ownsafety rules recognize a need to place insulation on the poles themselves, whether wet ordry.Commissioners Cleary and Cottine also reject N.E.T.&T.’s argument that the standard isunenforceably vague as construed. The Commission has construed the standard consistentwith its plain meaning and its remedial purpose. Indeed, N.E.T.&T.’s own work rulesshow that it had no difficulty understanding the Secretary’s standard. N.E.T.&T.’sstated policy requires that all construction line crews use B pole guards when placing orremoving poles on or near joint owned poles. The N.E.T.&T. rule makes no exception forinstances in which the conductors are rubbered up. Under these circumstances,N.E.T.&T.’s vagueness argument lacks merit.[[10\/]]C. Conduct of EmployeesNevertheless, Chairman Rowland and Commissioner Cottine conclude that the citation itemshould be vacated.The Secretary argues that N.E.T.&T. had knowledge of the violation because supervisorLemmo knew the conditions at the scene, including the fact that the pole was wet. Heargues that if reasonable diligence had been exercised, Lemmo would have known that Scottand Hanson did not plan to use a pole guard and would have discovered the absence of apole guard at the worksite simply by looking in the back of the truck or by asking theemployees. The Secretary also maintains that the affirmative defense of employeemisconduct was not established because the two experienced linemen often did not use poleguards or other equivalent protective equipment when the electric company’s lines wererubbered up; a properly trained employee would have known to insulate the wet pole underthe circumstances of this case. Moreover, the record does not contain any examples ofdisciplinary action being taken to enforce the work rule prescribing pole guards despiteScott’s assertion that he himself had replaced poles more than 50 times without using poleguards.Chairman Rowland notes that the Secretary has the burden of proving that N.E.T.&T.knew or, with the exercise of reasonable diligence, could have known of the violativecondition. Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ?25,358 (No. 16147, 1981). Chairman Rowland concludes that N.E.T.&T. lacked actualknowledge of the violation because the supervisor, Lemmo, was not present during any phaseof the actual pole-setting procedure, and neither Scott nor Hanson was a supervisoryemployee whose actual knowledge can be imputed to N.E.T.&T. See H.E. Weise, Inc., 82OSAHRC 18\/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ? 25,985 (Nos. 78-204 & 78-205, 1982).Chairman Rowland would also hold that N.E.T.&T. lacked constructive knowledge becauseit exercised reasonable diligence. Lemmo personally visited the worksite and took, notesregarding the conditions his repair crew would encounter. He personally communicatedinstructions to the repair crew, including specific directions about digging the hole forthe new pole at a distance of 3′-4’ from the old pole. He arranged for the electriccompany to rubber up its lines and also understood that a pole guard would be used becauseScott indicated to Lemmo that he would get a pole guard. Lemmo had never observed Scott orHanson fail to use a pole guard when replacing a pole under similar circumstances, andScott and Hanson had 15 years and 25 years of experience respectively at N.E.T.&T.N.E.T.&T.’s work rules clearly required that pole covers be used and made no exceptionfor instances in which the lines were rubbered up. Indeed, the Secretary conceded thatN.E.T.&T. adequately trained employees on using pole guards. N.E.T.&T. also had acommendable safety program in which employees are observed performing work, and aredisciplined for infractions of safety rules. [[11\/]] The duty to exercise reasonablediligence does not require that a supervisor be assigned to remain and watch a crew’severy move. See Capital Electric Line Builders, Inc. v. Marshall, 678 F.2d 128, 131 (10thCir. 1982); Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1155 (1stCir. 1975); B-G Maintenance Management, 76 OSAHRC 60\/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD? 20,744 (No. 4713, 1976). This duty also does not require that the employer preventevery instance of employee noncompliance with a workrule. Jones & Laughlin SteelCorp., 82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ? 26,128 (No. 76-2636).Accordingly, Chairman Rowland would vacate this item on the ground that the Secretaryfailed to establish that N.E.T.&T. knew or, through the exercise of reasonablediligence, could have known of the violation.Commissioner Cottine joins Chairman Rowland in vacating the pole guard item, but fordifferent reasons. He concludes that N.E.T.&T. has established its unpreventableemployee misconduct defense. In order to establish this defense, an employer must showthat: (1) work rules designed to prevent the violation have been established; (2) theserules have been adequately communicated to its employees; and (3) adequate steps have beentaken to discover violations, and these rules have been effectively enforced whenviolations have been discovered. E.g., Jensen Construction Co., 79 OSAHRC 49\/D3, 7 BNAOSHC 1477, 1479, 1979 CCH OSHD ?23,664, p. 28,695 (No. 76-1538, 1979). Employees must beproperly trained and supervised and must be made aware that the work rules will beenforced. See Danco Construction Co. v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978).N.E.T.&T. has established a work rule designed to prevent the violation. This rulerequires the use of pole guards when replacing poles. The Secretary has agreed thatN.E.T.&T. adequately communicated the rule to its employees. N.E.T.&T. has takensteps to discover violations; Lemmo observed Hanson and Scott replacing poles about threetimes per month. The record supports a finding that N.E.T.&T. has effectively enforcedits work rules when violations have been discovered; each of these employees had haddeviations from safe practice brought to his attention in the past. Employees have beendisciplined for violations by measures including suspension. Moreover, Scott’s statementto Lemmo that Scott \”had better get a pole guard\” obviated a need for furtherinstruction or inquiry about the need to use a pole guard on this assignment. On thesefacts, Commissioner Cottine finds that N.E.T.&T. provided supervision adequate todetect noncompliance with the rules and discipline sufficient to discourage suchnoncompliance. Accordingly, Commissioner Cottine concludes that N.E.T.&T. hassuccessfully proven its defense of unpreventable employee misconduct. [[12\/]] Accordingly,he joins with Chairman Rowland in vacating this item of the citation. [[13\/]]III. The Glove ItemA. The Judge’s DecisionJudge Furcolo vacated the item alleging the failure to use insulating gloves. He rejectedN.E.T.&T.’s unpreventable employee misconduct defense, finding that employees not onlyoften did not use insulating gloves, but apparently were never disciplined for suchfailure. Nevertheless, the judge found that N.E.T.&T. had no knowledge of theemployer’s failure to wear insulating gloves and, thus, he vacated this item on thatbasis.B. N.E.T.&T.’s ContentionsN.E.T.&T. maintains that the Secretary failed to show noncompliance. First,N.E.T.&T. disputes the Secretary’s implicit interpretation of the standard for-biddingemployees to undertake any part of the pole-setting procedure without using insulatinggloves. N.E.T.&T. observes that the standard, see note I supra, speaks in terms of\”a possibility\” of contact. It therefore argues that the item should be vacatedbecause there is no direct evidence that Hanson was handling the pole with either hishands or tools at the same time that it was possible for the pole to contact a powerconductor. N.E.T.&T. maintains that the Secretary’s only evidence to support hisallegation of noncompliance is N.E.T.&T.’s post- accident investigation report. Itobjected at the hearing to the admission of the report on the sole ground that it washearsay. It apparently renews this argument on review and also argues that because thereport contains only conclusions of N.E.T.&T.’s committee, the report is insufficientevidence of a violation.N.E.T.&T. argues that the Commission should adopt the judge’s finding that it lackedknowledge of the violative condition. Scott, an experienced telecommunications worker,testified that, during the lashing operation, a possibility of contact between the poleand conductor exists once the pole comes within one foot of the conductor. At that point,Scott stated, he would either stop lashing or put on insulating gloves before continuing.N.E.T.&T. argues that the standard permits the judgment which Scott expressed in histestimony. N. E. T. &T. argues that inasmuch as Scott wore insulating gloves wheneverhe reasonably judged that there was a possibility of electrical shock, N.E.T.&T. couldnot, with reasonable diligence, have known that Hanson (an even more experienced employeethan Scott and similarly trained) would have failed to wear insulating gloves whenrequired to do so under the standard.As to the employee misconduct defense itself, N.E.T.&T. points to Judge Furcolo’sfinding that N.E.T.&T. had a very thorough and detailed safety program which includedregular observations of employees in the field. NET.&T. asserts that the recordindicates that employees were disciplined; there was no testimony that work rules were notenforced. N.E.T.&T. also argues that, since the glove standard governs employeeconduct and does not specify employer conduct for compliance, the Secretary has the burdenof establishing \”what the employer could feasibly have done to change the employee’sbehavior.\”C. Was a violation of the glove standard established?As with the pole guard item, the key questions are whether N.E.T.&T. was in compliancewith the standard, whether it had knowledge of the violative condition, and whether itmade out its unpreventable employee misconduct defense. Commissioners Cleary and Cottineconcur in finding a violation. They agree, first, that the Secretary establishedN.E.T.&T.’s noncompliance because gloves were not worn while Hanson was handling thenew pole and while there was a possibility of contact with a power conductor. Inasmuch asthere is no doubt that gloves were not worn while Hanson was handling the new pole duringthe lashing operation, the only question relating to noncompliance is whether there was a\”possibility\” of contact between the pole and a power conductor during theoperation. The record establishes that this lashing operation brought the poles within 1 11\/2 feet of each other, that some of the power conductors on the old pole wereuninsulated, and that the wet, new pole was uninsulated. The possibility of contact underthese circumstances is manifest. By requiring its employees to wear insulating gloves whenhandling the pole with hands or tools, N.E.T.&T. clearly recognized that a possibilityof contacting power lines is often present in a joint use pole-replacement situation. Thetestimony of supervisors Cronin and Lemmo regarding the company policy requiring polecovers further demonstrates that N.E.T.&T. assumed the existence of a possibility ofcontact whenever this replacement task was undertaken. Indeed, the existence of apossibility of contact between pole and conductor under the circumstances is graphicallydemonstrated by the strong circumstantial evidence indicating that Hanson sustained hisinjury here as a direct result of such contact. [[14\/]] The circumstances of the accidentare probative of the possibility of contact. See Concrete Construction Corp., 76 OSAHRC47\/A2, 1 BNA OSHC 1133, 1135 n.3, 1975-76 CCH OSHD ? 20,610, p. 24,664 n.3 (No. 2490,1976). Thus, the facts support a finding that contact between the electric company’senergized equipment on the old pole and tile wet, uninsulated new pole was at the veryleast possible, if not probable. Accordingly, the standard was not complied with.Commissioner Cleary also finds that the Secretary established that N.E.T.&T., with theexercise of reasonable diligence, could have known of the employee’s failure to use rubberinsulating gloves during the lashing operation. [[15\/]] Commissioner Cleary rejectsN.E.T.&T. ‘s argument that it exercised reasonably diligence in relying on experiencedemployees to make reasonable judgments based on a one-foot \”rule\” about whethercontact was possible. He notes, first, that the one-foot rule was not a rule at all, butmerely a statement of personal practice uttered by the same employee who, as a matter ofpersonal practice, routinely neglected to use pole covers. The asserted reasonableness ofthis \”rule\” belied both by N.E.T.&T.’s own work rule which requires that asupervisor be notified if a new pole will come within 3 feet–not 1 foot–of the nearestelectric primary wire and a temporary connection between the new and old poles cannot beplaced and also by its safety instruction that insulating gloves worn when handling thepole with hands or tools. Commissioner Cleary also notes that an employer cannot claimthat it is reasonably diligent in relying on an experienced employee’s judgment when therule of thumb that the employee uses is contrary to the Secretary’s standards. A relatedprovision of section 1910.268 provides that, for power lines with a voltage range between2kV and 15kV, a separation of 24 inches must be maintained between an employee and powerlines, energized parts, and conductive objects he handles unless either the employee iswearing gloves, or the power lines, energized parts, or conductive objects are insulated,or the power lines and equipment are deenergized. 29 C.F.R. ? 1910.268(b)(7) and TableR-2.[[16\/]] The power line here carried 13.8kV, the energized power lines wrapped aroundinsulators were not guarded by pigs, and the wet pole–a conductive object–was notinsulated with a pole cover. The employee’s failure to wear gloves when the pole waswithin one foot of energized lines and parts was therefor inconsistent with section1910.268. Although there may be room for debate whether a pole is close enough to anenergized line or part to warrant the wearing of gloves under section 1910.268(n)(11)(iv),the debate must end when section 1910.268 specifically requires gloves.[[17\/]]Commissioner Cleary also finds a failure to exercise reasonable diligence by N.E.T.&T.for the reasons stated below regarding its unpreventable employee misconduct defense.Commissioners Cleary and Cottine reject N.E.T.&T.’s unpreventable employee misconductdefense. It had established a workrule which encompassed the requirements of the citedstandard (see note 17 supra), and had adequately communicated that workrule to itsemployees. However, there must also be effective enforcement of the workrule. JensenConstruction Co., supra; see Danco Construction Co. v. OSHRC, supra. In particular,\”[e]ffective safety enforcement requires a diligent effort to discover and discourageviolations of safety rules by employees.\” Paul Betty d\/b\/a Betty Bros., 81 OSAHRC18\/B11, 9 BNA OSHC 1379, 1981 CCH OSHD ? 25,219 (No. 76- 4271, 1981). Here, insulatinggloves are worn under other work gloves when employees work in the aerial bucket. It isundisputed that it is therefore difficult, if not impossible, to determine whether anemployee in an aerial bucket is wearing insulating gloves. N.E.T.&T. was or shouldhave been aware that its visual safety inspections were inadequate to detect employees’failure to wear insulating gloves while working in aerial buckets. Because N.E.T.&T.’spractice of making cursory, visual spot checks was not an effective means of detectingthis type of violation, [[18\/]] Commissioners Cleary and Cottine conclude that a violationwas established.[[19\/]]Commissioners Cleary and Cottine agree with the Secretary that the violation was serious.For a violation to be characterized as serious under section 17(k) of the Act, 29 U.S.C.? 666(j), [[20\/]] there must be a substantial probability that death or serious physicalharm could result if an incident occurred; the probability that an incident will occur isirrelevant. See Wright & Lopez, Inc., 81 OSAHRC 92\/D1O, 10 BNA OSHC 1103, 1114, 1981CCH OSHD ? 25,728, p. 32,079 (No. 76-256, 1981). It is clear that, in the event of anaccident, death or serious harm would have been substantially probable, as is indicated bythe incident occurring in this case.Commissioners Cleary and Cottine now turn to theassessment of a penalty.[[21\/]] The parties have stipulated that N.E.T.&T. employsapproximately 41,500 persons. As to gravity, the following elements must be considered:the number of employees subjected to the hazard (one); the duration of exposure (less thantwo hours); the precautions taken against injury (N.E.T.&T. arranged for the electriccompany crew to come and rubber up the lines); and the degree of probability that aninjury would occur (N.E.T.&T. stipulated at trial that there was a\”possibility\” of serious injury or death here). N.E.T.&T. is entitled tosome credit for good faith on account of its safety program, which the judge commended.Under the circumstances, Commissioners Cleary and Cottine conclude that a penalty of $550is appropriate.Accordingly, the judge’s decision is reversed. The citation item involving the pole guardis vacated. The citation item involving the insulating gloves is affirmed; a penalty of$550 is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983 The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]) , telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386)\u00a0FOOTNOTES: [[1\/]] The standards provide:? 1910.268 Telecommunications. (n) Overhead lines.(11) Handling poles near energized power conductors. (iii) (A) In joint lines where the power voltage is greater than 750 volts but less than34.5kV phase to phase (20 kV to ground), wet poles being placed, moved or removed shall beinsulated with either a rubber insulating blanket, a fiber-glass box guide, or equivalentprotective equipment.(iv) Insulating gloves shall be worn when handling the pole with either hands or tools,when there exists a possibility that the pole may contact a power conductor. Where thevoltage to ground of the power conductor exceeds 15kV to ground, Class II gloves (asdefined in ANSI J6.6-1971) shall be used. For voltages not exceeding l5kV to ground,insulating gloves shall have a breakdown voltage of at least 17kV,[[2\/]] An \”insulating blanket\” is a rubber blanket, approximately 3 feetsquare, that is wrapped around a pole and secured with twine in order to insulate thepole.[[3\/]] A \”box guard\” is a square, fiberglass covering, approximately 6 feetlong, that fits over the top of a pole to insulate the pole.[[4\/]] N.E.T.&T.’s investigative report is property admitted in evidence as anadmission by a party opponent and is not hearsay. Rule 801(d)(2), Federal Rules ofEvidence.[[5\/]] N.E.T.&T.’s safety practices for placing or removing poles near electric powerlines provide in part:2.03 Poles being placed or removed where power voltages are over 5000 volts but not over20,000 volts to ground must be insulated. 2.06 All employees handling the pole, either with their hands, pike poles,or other tools,shall wear the appropriate insulating gloves (with protectors) as outlined in table Athroughout the time that there is a possibility that the pole may contact the powerconductors. All parts of the body, other than the insulating glove-protected hands, shall be kept free from contact with the pole or with tools used in handling thepole (including pole derrick and truck) during the period that the pole may contact thepower conductors.7.10 If the new pole will be within 3 feet of the nearest electric primary wire and atemporary connection between the new and the old poles cannot be placed, notify yoursupervisor.[[6\/]] N.E.T.&T. argued before the judge that the Secretary had failed to establishthat the new pole was wet. The judge found otherwise. The correctness of the finding wasnot raised in either the petition for review or the direction for review. We therefore donot review the finding. Commission Rule 92(c), 29 C.F.R. ? 2200.92(c).[[7\/]] The standard provides:Subpart V — Power Transmission and Distribution ? 1926.950 General requirements.(c) Clearances. The provisions of paragraph (c)(1) or (2) of this section shall heobserved.(1) No employee shall be permitted to approach or take any conductive object without anapproved insulating handle closer to exposed energized parts than shown in Table V-1,unless:(ii) The energized part is insulated or guarded from him and any other conductive objectat a different potential,….[[8\/]] For this reason, it is not necessary to consider the correctness of the judge’sview that the absence of pigs rendered the line hose non- equivalent.[[9\/]] With respect to the admissions of the Secretary’s counsel regarding interpretationof the cited standard, we note that we are not bound by the legal views of the Secretary’sattorneys. See United States Steel Corp., 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, l977-78 CCHOSHD ? 21,795 (Nos. 10825 & 10849, 1977).[[10\/]] Chairman Rowland does not agree that ? 1910.268(n)(11)(iii)(A) requiresequivalent protective equipment to be placed on the pole and nowhere else. The majorityrelies on its appraisal of the \”sense\” of the standard and a related provision.The standards, however, say only that the pole must be \”insulated.\”\”Insulated\” is defined at ? 1910.268(s)(22) as:Separated from other conducting surfaces by a dielectric substance (including air space)offering a high resistance to the passage of current. Note: When any object is said to beinsulated, it is understood to be insulated in suitable manner for the conditions to whichit is subjected. Otherwise, it is, within the purpose of these rules, uninsulated.Insulating coverings of conductors is one means of making the conductor insulated.Nothing in the definition of \”insulated\” specifies the location of theinsulation. Indeed, the language of the standard on which the majority relies, ?1910.268(n)(11)(iii)(C), supports my conclusion that the cited standard does not requireinsulation to be placed on the pole itself. Rather that standard refers to insulation\”of\”–not \”on\”–the pole.Moreover, the purpose of ? 1910.263(n)(11)(iii)(A) is to prevent contact between wetpoles and live conductors. It is therefore entirely consistent with the words and purposeof the standard to hold that a pole may be \”insulated in a suitable manner\” fromelectric power lines if the lines are shielded by an insulating cover. The Secretary hasacknowledged as much by admitting that insulating line hose is a type of protectiveequipment used by electric company employees when working in proximity to power lines,that line hose is equivalent to a pole guard for purposes of preventing contact betweenthe pole and live conductors, and that line hose is one of the alternative types ofprotective equipment which meets the requirements of a standard designed to protectelectric company workers, 29 C.F.R. ? 1926.950(c)(1)(ii).Contrary to the majority’s assertion, its construction of the standard is not \”mostconsistent with its remedial purpose.\” Insulation not placed on the pole may wellafford equally adequate protection against contact with energized lines. Indeed, it isconceivable that, at least in some instances, insulation on the live conductors wouldafford superior protection for employees engaged in a pole-setting operation. The majoritystates no reasons why a \”liberal\” interpretation is necessary to achieve thestatutory objective of protecting employees when the interpretation it rejects appearsequally to effectuate that purpose.Nevertheless, Chairman Rowland concludes that N.E.T.&T. failed to satisfy ?1910.268(n)(11)(iii)(A) because he agrees with the judge that, under the circumstances ofthis case, the absence of pigs from part of the energized lines prevented the lineinsulation from qualifying as \”equivalent protective equipment\” within themeaning of the standard. However, Chairman Rowland would vacate this item. of the citationin any event; for the reasons stated in Part II-C infra, he finds that the Secretaryfailed to show that N.E.T.&T. had knowledge that pole guards–a permissiblealternative–were not used.[[11\/]] Chairman Rowland does not, however, express an opinion on whether an employeris required to do more than communicate work rules to non-supervisory employees, as here.See Marson Corp., 82 OSAHRC 29\/C4, 10 BNA OSHC 1660, 1666 n.16, 1982 CCH OSHD ? 26,075 p.32,808 n.16 (No. 78-3491, 1982) (Rowland, Chairman, dissenting).[[12\/]] Commissioner Cottine notes that the mere fact that two employees of this largecompany had violated the workrule on numerous occasions does not rebut the overwhelmingevidence that N.E.T.&T. took adequate steps to enforce the workrule in this case. SeeJones & Laughlin Steel Corp.82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ? 26,128(No.76-2636,1982); cf. Daniel Int’l Corp., Brown & Williamson Project 81 OSAHRC 57\/A2,9 BNA OSHC 1980,1983, 1981 CCH OSHD ? 25,492, pp. 31,789-90 (No. 15960, 1981), rev’d, 638F.2d 361 (11th Cir. 1982). The fact that one of those employees did not properlyunderstand the workrule also does not rebut the overwhelming evidence that the workrulewas adequately communicated. Though Commissioner Cottine concluded in Jones & Laughlinthat neither the case law nor the facts supported the vacation of the citation, theCommission majority found that the employer could not have discovered the violations ofits safety rules regarding crane boarding, even though 1O% of the hundreds of employees,who board its many cranes each day violated the rules.[[13\/]] Commissioner Cleary dissents from the majority’s disposition because heconcludes that N.E.T.&T. could have known of the violation had it been reasonablydiligent and because N.E.T.&T. failed to establish its unpreventable employeemisconduct defense. Despite the existence of N. E.T. &T.’s workrule and despite theSecretary’s admission that N.E.T.&T. adequately trained employees to use pole guardswhen replacing poles, the record evidence shows that Scott nevertheless believed that itwas proper not to use pole guards where the electric company had rubbered up its lines.Cf. Jones & Laughlin Steel Corp., n.12 supra (employees knowingly violated companysafety rules on crane boarding solely for convenience). This asserted belief, togetherwith Scott’s evident, persistent failure to use pole guards under such circumstances,belies N.E.T.&T.’s claim–and the Secretary’s admission–that employees wereadequately trained. See New England Telephone and Telegraph Co., 80 OSAHRC 54\/A2, 8 BNAOSHC 1478, 1980 CCH OSHD ? 24,523 (No. 76-3010, 1980). In addition, the fact that Scott,at a minimum, violated the pole-guard rule 15-20 times (with Hanson), and was neverdisciplined for these violations shows that N.E.T.&T.’s enforcement policy under thepole guard standard was ineffective. Simple observation by supervisors would have detectedviolations of the pole guard workrule.Cf. Jones & Laughlin Steel Corp., supra,(employer’s monitoring of employee crane boarding was not shown to be inadequate undercircumstances where observation of employees’ violations was difficult).Commissioner Cleary would also draw on the evidence that neither Scott nor Hanson woregloves, as required, during lashing operations. The two employees also performed the wholetask of the pole-setting without the protection required from the live power lines. Evenunder N.E.T.&T’s reading of the standard, the insulation of the wires by the electriccompany cannot be considered equivalent protection because, as Judge Furcolo noted,conductors were not insulated with pigs. The fact that an employee was injured ispersuasive evidence of the point. Moreover, there was no attempt to ascertain whether thepigs had been placed on the lines by the electric company.In sum, while there is testimony that N.E.T.&T. had a comprehensive safety program,the picture that emerges from this case is that Scott and Hanson had insufficientprotection throughout this whole operation. The \”protection\” afforded byinsulation installed by the electric company was illusory, and the employees were left totheir own judgment as to whether, and under what circumstances they should use otherprotective measures. The evidence as to what actually occurred shows an operation that washazardous in the extreme, in the light of which the testimony indicating a safety programis unpersuasive. Any one of three safety precautions (use of gloves, pigs, or pole guards)would have prevented Hanson’s injury. It is very doubtful that all three of these safetyfailures could have coincided had there been an effective safety program.[[14\/]] As noted above, N.E.T.&T.’s investigative report qualifies as an admission bya party-opponent and is not hearsay. See n.4, supra. The report states that \”the oldand new pole[s] were probably brought together. . . [and tile] exposed bracket on the oldpole… was brought into contact with the new pole. . . . \” N.E.T.&T. argues thatthe report contains merely speculative, conclusionary statements by persons lackingfirst-hand knowledge and is therefore insufficient, even if it is admissible. WhileCommissioners Cleary and Cottine agree that the report was prepared by persons lackingfirst-hand knowledge, they do not agree that the report is insufficient or unreliable.N.E.T.&T. overlooks that the report represents the conclusions of a group of highlyresponsible N.E.T.&T. officials who are presumably experienced and knowledgeable inthese matters. N.E.T.&T. does not suggest that its committee’s inferences areimplausible and it does not suggest any other plausible manner by which Mr. Hansonsuffered injury. Direct evidence established that, at a time when it was possible for theuninsulated, wet new pole to contact a power conductor on the old pole, Hanson was alonein the aerial bucket performing a task which tends to bring the two poles closer togetherimmediately before being electrocuted. It is a reasonable inference–and N.E.T.&T.’scommittee concluded–that Hanson created an electrical circuit through his body whileworking on lashing wires between the new and old poles.[[15\/]] See supra n.13.[[16\/]]This provision is very similar to ? 1926.950(c)(1), upon which N.E.T.&T.relies.[[17\/]]N.E.T.&T. also implies that the cited standard may be constitutionallydefective on grounds of vagueness if the standard is not read to permit the type ofemployee judgment expressed by Scott regarding when the possibility of contact existsbetween the pole and the conductor. Commissioners Cleary and Cottine reject thissuggestion. The company’s safety instruction tracks the cited standard by requiring thewearing of insulating gloves whenever there is a possibility that a pole may contact apower conductor while the pole is being handled. The cited standard is not unenforceablyvague as applied to N.E.T.&T.[[18\/]] Commissioners Cleary and Cottine reject N.E.T.&T.’s argument that theSecretary must establish through expert testimony the feasibility of specific measures toprevent alleged employee misconduct. It is well-settled that unpreventable employeemisconduct is an affirmative defense, Marson Corp., supra, whereby the employer endeavorsto show that it did everything it could reasonably have done to prevent the violation.Accordingly, the Secretary was not obliged to prove the feasibility of specific measuresto correct the misconduct of N.E.T.&T. employees.[[19\/]] Chairman Rowland dissents from his colleagues’ disposition of this item. He wouldhold that the Secretary failed to establish that N.E.T.&T., through the exercise ofreasonable diligence, could have known of the violation. Such proof is an essentialelement of the Secretary’s case, Marson Corp., 10 BNA OSHC at 1663, 1982 CCH OSHD at p.32,805. N.E.T.&T. to expect Hanson not to use insulating gloves where there was apossibility of contact. Both Scott and Hanson were very experienced employees. SupervisorCronin and for. an Lemmo had never known of an instance when Scott and Hanson failed touse insulating gloves while setting poles when there was a possibility of contact with theelectrical wires. Scott testified that he would have been insulted if Lemmo had remindedhim that morning to wear his gloves. Without being reminded, Scott and Hanson wore theirinsulating gloves while setting the pole. In Chairman Rowland’s view, these factsestablished that N.E.T.&T.’s workrule regarding gloves was adequately communicated toemployees. The only possible additional measure which N.E.T.&T.’s foreman could havetaken would have been to remain at that worksite for the duration of the entireassignment, rather than leaving for two hours to inspect other worksites. Under thecircumstances, it cannot be said that this additional step was called for or thatN.E.T.&T., through Lemmo, otherwise failed to exercise reasonable diligence.Chairman Rowland also would not rely on the requirements of ? 1910.268(b)(7). Paragraph(b) contains requirements for telecommunications work generally, whereas the provision atissue here, ? 1910.268(n)(1)(iv), is a more specific provision directed at the particularwork operation of moving poles.[[20\/]] Section 17(k), 29 U.S.C. ? 666(j), states:For purposes of this section, a serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physical harm couldresult from a condition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.[[21\/]] Section 17(j), 29 U.S.C. ? 666(1), provides:The Commission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.”