“Docket No. 79-5194 SECRETARY OF LABOR, Complainant, v.PENNSYLVANIA POWER & LIGHT CO., Respondent. INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, AFL-CIO, LOCAL UNION NO. 1600, Authorized Employee Representative.OSHRC Docket No. 79-5194DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE Commissioners. BY THE COMMISSION:A decision of Administrative Law Judge George O. Taylor, Jr. is before theCommission pursuant to section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 In his decision,Judge Taylor affirmed one item in a citation.[[1\/]] issued by the Secretary of Labor(\”the Secretary\”) which alleged a serious violation of the Act due tononcompliance with 29 C.F.R. ? 1926.955(a)(6)(ii). [[2\/]] Commissioner Cottine directedreview on the issues raised by Pennsylvania Power & Light Co. (\”PP&L\”)in its petition for discretionary review, including PP&L’s exceptions to:\u00a0 (1)the judge’s denial of its motion to reopen the record, and (2) his interpretation of thecited standard.\u00a0 For the reasons that follow, we affirm the judge’s conclusion thatPP&L failed to comply with section 1926.955(a)(6)(ii).IOn the morning of May 18, 1979, one of PP&L’s crews went to install a new utility polein order to raise the sagging lines between two existing poles located in a rural area ofPennsylvania.\u00a0 The three members of the crew were Willard Hankee, the crew leader,and Louis Schwartz and Martin Gusick, two first-class linemen.\u00a0 The crew drove abucket truck and a digger line truck to the worksite.\u00a0 Attached to the boom of thedigger line truck was an auger for digging the hole for the pole.\u00a0 The boom of thedigger line truck functioned to lift the auger into position as well as to lift and setutility poles and install equipment on them.\u00a0 Of the four lines supported by the twoexisting poles, only the top line was energized, and it conducted power at 7.2 kilovolts.Two days earlier, Hankee had visited the site with Tom Glennon, the rovingmulti-crew foreman who was Hankee’s immediate supervisor.\u00a0 The record does notestablish whether Glennon and Hankee agreed upon a specific work plan at that time or whatsafety instructions, if any, Glennon gave to Hankee.\u00a0 However, while riding to thejobsite in one of the trucks on May 18, Hankee had a conversation with Schwartz to theeffect that, if the truck could not be positioned correctly to do the job, they would haveto \”tag out\” the energized line, i.e., using a fiberglass stick and an insulatedhook attached to a rope, pull the sagging line out from its existing position and to theside opposite where the digger line truck was and then tie the line down.\u00a0 Schwartztestified that he expected to be able to pull the energized line about 15 feet away fromwhere the pole was to be placed so that the digger line truck’s boom could not reach it.Upon the crew’s arrival at the worksite, Schwartz parked the digger linetruck on an incline with its back end facing the drooping lines, thus positioning it todig a hole for the new pole.\u00a0 Then, Schwartz and Gusick went over to the bucket truckto obtain the equipment necessary for pulling the overhead lines away from the diggertruck.\u00a0 When they left to go to the bucket truck, the boom on the digger line truckwas \”stored\” in its cradle above the truck’s cab, and Hankee, the crew leader,was behind the line truck talking to the owner of the land where the pole was to beplaced.\u00a0 When the two linemen had obtained the necessary equipment and were ready toreturn to use it on the lines, they heard the property owner calling to them that their\”buddy was down.\”\u00a0 Schwartz and Gusick went over and saw that Hankee waslying on the ground with one foot on the operating stand at the rear of the truck, with anarc of electricity passing from his foot to the ground.\u00a0 The boom on the truck hadbeen rotated so that it was extended out over the rear of the truck and was resting on topof the overhead energized line.\u00a0 The truck was not grounded or barricaded.\u00a0 Hankee died as a result of the accident.\u00a0 No malfunction was found in the boomor the controls that operated it.PP&L defended against this item in the citation by contending primarilythat:\u00a0 the cited standard is unenforceably vague; PP&L neither knew nor shouldhave known of the allegedly violative conduct; the cited activity was the result ofunpreventable employee misconduct because PP&L had done all that it could to preventthe cited conduct.\u00a0 PP&L asserted that one of its work rules implemented therequirements of section 1926.955(a)(6)(ii) because its rule was patterned after otherstandards promulgated under the Act that are in the same subpart as the cited standard.\u00a0 The Secretary maintained that PP&L was required to take precautions when itslifting equipment was utilized within reaching distance of energized lines under what theSecretary considered to be the proper interpretation of the term \”near\” in thecited standard.\u00a0 The Secretary argued that PP&L’s workrule, incorporating theclearance distances of other standards, was inadequate to comply with the more stringentrequirements of the cited standard.IIIn his decision on the merits, Judge Taylor concluded that PP&L failed to comply withthe cited standard because the truck was not grounded or barricaded, and the boom, whichtouched the line, was being utilized \”near\” an energized line within the meaningof the standard.\u00a0 Judge Taylor rejected PP&L’s argument that the cited standardis unenforceably vague, citing Wisconsin Electric Power Co., 76 OSAHRC 134\/B2, 4 BNA OSHC1783, 1976-77 CCH OSHD ? 21,234 (No. 5209, 1976), aff’d, 567 F.2d 735 (7th Cir. 1977), inwhich the Commission expressly upheld the standard against a vagueness challenge.\u00a0 Hefurther concluded that Hankee’s knowledge of the cited conduct was imputable to PP&Lbecause PP&L did not establish that it had done everything reasonably possible toavoid a violation.\u00a0 More particularly, the judge determined that PP&L failed toprove that Hankee’s conduct was unpreventable because it had not established a work rulethat effectively implemented the requirements of section 1926.955 (a) (6) (ii), citinggenerally Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50\/E1, 6 BNA OSHC 1675,1978 CCH OSHD ? 22,805 (No. 3069, 1978).\u00a0 The judge observed that PP&L’s workrule, like 29 C.F.R. ? 1926.952(c)(2), [[3\/]] did not require grounding until within 2feet of a conductor energized at 7.2 kilovolts.\u00a0 The judge deferred to theSecretary’s interpretation of section 1926.955(a)(6)(ii), requiring the grounding of atruck before its boom is moved from the cradle position if the boom could reach anenergized line in any way.\u00a0 He concluded that the Secretary’s interpretation was notplainly erroneous or inconsistent with OSHA regulations and was \”far morereasonable\” than PP&L’s.\u00a0 The judge stated that the reasonableness of theSecretary’s interpretation was demonstrated in Floyd S. Pike, supra, in which the employerimplemented section 1926.955(a)(6)(ii) with a work rule that was consistent with theSecretary’s interpretation of that standard in the instant case.\u00a0 After concludingthat the penalty of $560 proposed by the Secretary was excessive, Judge Taylor assessed apenalty of $250 based on PP&L’s good faith as evidenced by its \”excellent overallsafety program.\”Soon after receiving a copy of the judge’s decision, which had not yet beenfiled with the Commission, PP&L filed a motion, as well as a supporting memorandum,for the judge to reconsider that portion of his decision concerning his interpretation ofthe cited standard and to reopen the record to permit PP&L to introduce evidenceconcerning the application of another utility company for a variance from section1926.955(a)(6)(ii).\u00a0 That evidence, copies of which were attached to the supportingmemorandum filed with the judge, consisted of these documents:\u00a0 (1) an applicationfrom Wisconsin Electric Power Co., through its counsel, for an order granting a variancefrom section 1926.955(a)(6)(ii) and a memorandum in support thereof directed to theAssistant Secretary of Labor for Occupational Safety and Health, United States Departmentof Labor, in which Wisconsin Electric asserted that its employees would be best protectedby permitting them to alternatively or jointly insulate, isolate, ground, or barricadeelectric line trucks, in accordance with section 1926.952(c)(2), because grounding orbarricading alone, as required by section 1926.955(a)(6)(ii), does not always adequatelyprotect the line crew; (2) a letter in response, dated October 17, 1978, from James J.Concannon, the Director of the Occupational Safety and Health Administration’s Office ofVariance Determination, in which he agreed with the company that barricading alone, one ofthe alternatives under section 1926.955(a)(6)(ii), would not provide adequate protection.\u00a0 He then stated that \”it appears that if there is compliance with 1926.952(c)there is also compliance with 1926.955(a)(6)(ii) and a variance is unnecessary.\”PP&L argued that those documents, particularly the quoted statement byConcannon, support its position as to when a truck with a boom near an energized lineshould be grounded under section 1926.955(a)(6)(ii).\u00a0 PP&L stated that it was notuntil after the judge had issued his decision that it had learned of the two letters fromits trade association.\u00a0 PP&L gave no reason why it could not have obtained theletters earlier.\u00a0 Nevertheless, it asserted that reopening of the record waswarranted because:\u00a0 (1) the judge had deferred to an interpretation of the standardby the Secretary that had been superseded by the interpretation in the Concannon letter;(2) the inconsistency in the Secretary’s interpretations of the cited standardcorroborated PP&L’s contention that the standard is unenforceably vague; and (3) thejudge’s sua sponte reliance on Floyd S. Pike’s work rule had denied PP&L due processbecause it filled the evidentiary void on the question of the reasonableness of theSecretary’s interpretation of the standard without giving PP&L the opportunity torebut that contention.After reconsidering his interpretation of the cited standard, Judge Taylorissued a brief decision in which he stated his adherence to his decision on the merits anddenied PP&L’s \”untimely\” motion to reopen the record because PP&L hadfailed to establish that the letters were not available to it at the time of the hearing,citing generally Seattle Crescent Container Service, 79 OSAHRC 91\/A2, 7 BNA OSHC 1895,1979 CCH OSHD ? 24,002 (No. 15242, 1979).\u00a0 Moreover, the judge concluded that,because PP&L did not learn of the Concannon letter until after his decision, theletter could not have affected PP&L’s failure to modify its work rule.\u00a0 He alsonoted that, after having learned of the Secretary’s interpretation of the cited standardat the hearing, PP&L did not move for a continuance.\u00a0 Furthermore, the judgestated that, although the court’s decision in Wisconsin Electric Power Co. v. OSHRC, 567F.2d 735 (7th Cir. 1977), did not define the term \”near,\” it did put PP&L onnotice that the requirements of section 1926.952 (c)(2) were considered to be more lenientthan the provisions of section 1926.955 (a)(6)(ii), and that its work rule on groundingwas therefore inadequate. The judge also noted that his conclusion that the Secretary’sinterpretation was far more reasonable than PP&L’s was based on the evidence ofrecord, not on the work rule set forth in Floyd S. Pike, supra, a published decision ofthe Commission.III APP&L argues on review that, given the record in this case andparticularly Judge Taylor’s \”surprise\” reliance on the Floyd S. Pike work rule,the judge abused his discretion in denying its motion to reopen the record to allowintroduction of Wisconsin Electric Power Co.’s application for a variance and theConcannon letter.\u00a0 In addition to the arguments it made before the judge, PP&Lasserts that the instant case is distinguishable from Seattle Crescent Container Service,supra, because PP&L’s motion to reopen is not the result of a lack of diligence infailing to introduce rebuttal evidence at the hearing.\u00a0 PP&L’s position is thatprior to the judge’s decision relying on the Floyd S. Pike work rule there was nothing torebut.The Secretary contends on review that the judge acted properly in denying themotion because of the need to end this litigation and PP&L’s failure to establish thatthere was any substantial justification for reopening the record or that reopening of therecord would materially enhance a decision on the merits.\u00a0 The Secretary particularlynotes that the letters were written at least 20 months before the hearing in this case andwere thus \”available\” to PP&L long before the hearing.\u00a0 The Secretaryasserts, as did Judge Taylor in his order denying PP&L’s motion, that the judge didnot base his decision on the Floyd S. Pike work rule, but rather he only referred to it asan example of implementation of the Secretary’s interpretation of the cited standard.(1) In Wisconsin Electric Power Co., supra, the employer was issued a citationfor failure to comply with section 1926.955(a)(6)(ii) in that it failed to bond a linetruck to an effective ground or to consider the truck energized and barricade it.\u00a0 Wisconsin Electric argued that the standard cited was inapplicable and that it hadcomplied with the applicable standard–section 1926.952(c)(2) (see note 3 supra) –in thatit had installed an insulated barrier between the mechanical equipment and the energizedline.\u00a0 In its decision, the Commission concluded that, based on the language in theintroductory sentence comprising section 1926.955(a)(1), note 1 supra, compliance withsection 1926.952(c)(2) does not abrogate the duty to comply with section1926.955(a)(6)(ii).\u00a0 The Commission noted that those two standards impose cumulativerequirements, for section 1926.952(c)(2) specifies four alternative measures, one of whichmust be taken when mechanical equipment not certified for the specific voltage is operatedwithin a particular distances of an energized line, while the more restrictive provisionsof section 1926.955(a)(6)(ii) require that when overhead lines and lifting equipment areinvolved, only two alternative measures–grounding or barricading–are permitted.The Court of Appeals for the Seventh Circuit affirmed the Commission afteragreeing with the Secretary that when lifting equipment is used to work on or withoverhead lines it is likely to become energized and more stringent protective requirementsare warranted.\u00a0 Wisconsin Electric Power Co. v. OSHRC, supra.\u00a0 Neither theCommission’s decision nor the court’s decision discussed the meaning of the term\”near\” in section 1926.955(a)(6)(ii) because the factor of distance was not inissue.\u00a0 Following the court’s decision, Wisconsin Electric submitted an applicationfor an order granting a variance and supporting memorandum to the Assistant Secretary ofLabor for Occupational Safety and Health.\u00a0 That application and memorandum as well asthe Secretary’s response are the documents that PP&L continues to seek to introduceinto the record in the instant case.(2) In our decision in Chesapeake Operating Co., 82 OSAHRC 36\/C9, 10 BNA OSHC1790, 1982 CCH OSHD ? 26,142 (No. 78-1353, 1982), we noted that motions to reopen therecord to introduce additional evidence are not specifically covered by the Federal Rulesof Civil Procedure.\u00a0 We further noted in that decision that Professor Moore providessome guidance for ruling on such motions in 6A Moore’s Federal Practice ? 59.04 [13] atpp. 59-33, 59-34, 59-37 (2d ed. 1982) where he states (footnotes omitted):In passing on the motion, the time when the motion is made, the character ofthe additional testimony, and the effect of granting the motion are pertinent factors forconsideration.A [trial] court, then, should consider a motion to reopen to take additionaltestimony in light of all the surrounding circumstances and grant or deny it in theinterest of fairness and substantial justice.In the instant case, we conclude that Judge Taylor did not abuse hisdiscretion in denying PP&L’s motion to reopen the record.\u00a0 The judge properlyweighed the factors mentioned in the above quote from Moore’s Federal Practice in makinghis ruling.\u00a0 However, we believe that the interests of fairness, substantial justice,and adjudicative efficiency would be best served by our considering the Concannon letternow rather than promoting the continued uncertainty as to the meaning of the letter thatwould result if we awaited a case in which the letter was admitted into evidence.\u00a0 See Chesapeake Operating Co., supra.We note that Mr. Concannon’s letter responds to a specific request byWisconsin Electric Power Co., through its counsel, that the Secretary grant it a variancefrom section 1926.955(a)(6)(ii) so that its employees would have the flexibility ofinsulating or isolating electric line trucks used near energized lines as an alternativeor in addition to grounding or barricading.\u00a0 The only statement in the Concannonletter that arguably supports PP&L’s position in the instant case is the declarationthat \”it appears that if there is compliance with 1926.952(c) there is alsocompliance with 1926.955(a)(6)(ii) and a variance is unnecessary.\”\u00a0 AssumingConcannon’s letter is the equivalent of an order granting a variance, we would not find itdispositive in this case.\u00a0 As we noted in Bethlehem Steel Corp., 81 OSAHRC 86\/A2, 9BNA OSHC 2177, 1981 CCH OSHD ? 25,645 (No. 77-617, 1981), petition denied, 688 F.2d 818(3d Cir. June 17, 1982), a variance applies to the specific employer and situation forwhich it is granted and is not binding on the Secretary or the Commission in other cases.\u00a0 Because Wisconsin Electric sought a variance only insofar as particular methods ofpreventing electric shock were concerned, Concannon’s statement quoted above must be readin the narrow context of the variance request and not extended to issues not raised byWisconsin Electric, such as the distance from an energized line at which a line truck mustbe grounded or barricaded.\u00a0 Furthermore, Concannon provided no authority or reasonsfor his general statement other than noting his agreement with Wisconsin Electric’sargument that barricading alone does not provide sufficient safety.\u00a0 We note thatneither Wisconsin Electric’s variance application and memorandum nor Concannon’s lettermention the Commission decision in Wisconsin Electric Power Co., supra, or the SeventhCircuit’s decision affirming it.\u00a0 Thus, Concannon apparently did not consider therationale of those decisions in responding to the variance application.\u00a0 Finally,PP&L could not have relied to its detriment on Concannon’s letter at the time of theinspection because PP&L was not aware of the letter’s contents until after the judge’sdecision was originally filed in the instant case.\u00a0 See Bethlehem Steel Corp., 81OSAHRC 108\/A2, 10 BNA OSHC 1264, 1982 CCH OSHD ? 25,839 (No. 16067, 1981).[[4\/]]B(1)PP&L contends on review that the judge erred in concluding that it had knowledge ofthe violative conduct because, in the instant case, the Secretary had not met his burdenof proving that the cited employer could have foreseen its supervisor’s allegedlyviolative conduct, citing Capital Electric Line Builders of Kansas, Inc. v. Marshall, 678F.2d 128 (10th Cir. 1982), among other cases.\u00a0 In H.E. Wiese, Inc., 82 OSAHRC 18\/A2,10 BNA OSHC 1499, 1982 CCH OSHD ? 25,985 (Nos. 78-204 & 78-205, 1982), appeal filed,No. 82-4202 (5th Cir. May 28, 1982), the Commission reiterated its view that, when aviolation is committed by an employer’s supervisory employee, the actions and knowledge ofthat employee are imputed to the employer unless the employer rebuts by demonstrating thatthe supervisor’s conduct was unpreventable.\u00a0 We adhere to that view.(2) PP&L argues that the judge erred in concluding that it had notestablished that Hankee’s conduct was unpreventable.\u00a0 It reiterates its contentionbefore the judge that its work rule, which was patterned after section 1926.952(c)(2), seenote 3 supra, and requires grounding of electric line trucks when used within 2 feet of aconductor energized at 2.1 to 12 kilovolts, effectively implemented the requirement insection 1926.955(a)(6)(ii) that such lifting equipment be grounded or barricaded when used\”near\” an energized line.On review, the Secretary expands upon his arguments before the judge that hisinterpretation of \”near\” in section 1926.955(a)(6)(ii) to mean within reachingdistance of an energized line is the more reasonable definition.\u00a0 According to theSecretary, his interpretation of \”near\” is more practical and more likely toprevent accidental electrocution than PP&L’s because an employee is more likely toground or barricade the line truck before moving the boom than to partially move the boomand then stop and ground or barricade when the boom is 2 feet from the line.\u00a0 TheSecretary also argues that PP&L’s interpretation of \”near\” was implicitlyrejected by the Commission in Wisconsin Electric Power Co., supra, and by the UnitedStates Court of Appeals for the Seventh Circuit in Wisconsin Electric Power Co. v. OSHRC,supra, when they concluded that the provisions of section 1926.955(a)(6)(ii) are morerestrictive than those of section 1926.952(c)(2), and, in being particularly applicable towork on or with overhead lines, section 1926.955(a)(6)(ii) must be complied with inaddition to other standards in Subpart V.\u00a0 The Secretary contends that because OSHAchose to use the term \”near\” in the cited standard it therefore meant somethingdifferent than the specific minimum working distances set forth in some of the otherstandards under Subpart V.We agree with the Secretary’s arguments and conclude that the word\”near\” in section 1926.955(a)(6)(ii) does not refer to the clearance distanceslisted elsewhere in Subpart V.\u00a0 Because we interpret section 1926.955(a)(6)(ii) torequire grounding or barricading at a distance from the particular energized line in thiscase that is greater than the two feet permitted under PP&L’s work rule, we conclude,as did Judge Taylor, that PP&L failed to establish that it had a work rule thateffectively implemented the requirements of the cited standard and therefore failed toprove that the violation was the result of unpreventable employee misconduct. [[5\/]]\u00a0 See Wisconsin Electric Power Co., 4 BNA OSHC at 1786, 1976-77 CCH OSHD at p.25,532. [[6\/]] We also agree with the judge in rejecting PP&L’s argument that thecited standard is unenforceably vague.We therefore affirm the citation item alleging a serious violation fornoncompliance with section 1926.955(a)(6)(ii).\u00a0 Based on the considerations set forthin section 17(j) of the Act, 29 U.S.C. ? 666(i), we conclude that the penalty of $250assessed by the judge is appropriate and affirm that assessment.IT IS SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARY DATED:\u00a0 APR 8 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1\/]] The other item in the citation, which the judge vacated, is not beforethe Commission on review.[[2\/]] The relevant provisions of ? 1926.955(a) read as follows:Subpart V–Power Transmission and Distribution? 1926.955 Overhead lines.(a) Overhead lines.\u00a0 (1) When working on or with overhead lines theprovisions of paragraph (a)(2) through (8) of this section shall be complied with inaddition to other applicable provisions of this subpart.(6) ***(ii) Lifting equipment shall be bonded to an effective ground or it shall beconsidered energized and barricaded when utilized near energized equipment or lines.[[3\/]] The standard provides:Subpart V –Power Transmission and Distribution ?1926.952 Mechanical equipment.(c) Derrick trucks, cranes and other lifting equipment. (2) With the exception of equipment certified for work on the proper voltage,mechanical equipment shall not be operated closer to any energized line or equipment thanthe clearances set forth in ? 1926.950(c) unless:(i) An insulated barrier is installed between the energized part and themechanical equipment, or(ii) The mechanical equipment is grounded, or (iii) The mechanical equipment is insulated, or(iv) The mechanical equipment is considered as energized.Table V-1, which is set forth in 29 C.F.R. ? 1926.950(c) under Subpart V,lists voltage ranges and corresponding minimum working distances.\u00a0 For the rangeapplicable in the instant case — 2.1 to 15 kilovolts — the minimum working distanceallowed is 2 feet.[[4\/]] Commissioner Cleary finds that this case is distinguishable fromChesapeake Operating Co., supra, in which he concluded that a letter, offered by the citedemployer after the conclusion of the hearing, gave credence to the argument that themaritime industry was not aware that the cited standard applied to cargo stored on deck.\u00a0 10 BNA OSHC at 1793, 1982 CCH OSHD atp. 32,916.\u00a0 Commissioner Cleary vacated that citation on the basis that the citedemployer lacked sufficient notice of the requirements of the standard.\u00a0 With regardto the instant case, ? 1926.955(a)(6)(ii) was held to apply in Wisconsin Electric to theexclusion of ? 1926.952(c)(2) long before the citation in this case was issued.\u00a0 Heconcludes there was no absence of notice in this case.[[5\/]] PP&L also argues that Hankee’s conduct was unforeseeable becausecontact between the boom and the energized wire would not have occurred had the work beenperformed as planned in advance by the crew.\u00a0 PP&L’s argument is rejected.\u00a0 The Act places final responsibility for compliance with its requirements on theemployer.\u00a0 Having failed to implement and enforce an appropriate workrule, theemployer cannot evade its liability by shifting to its employees the responsibility forassuring safe working procedures. See Stuttgart Machine Works, Inc., 81 OSAHRC 14\/A2, 9BNA OSHC 1366, 1981 CCH OSHD ? 25,216 (No. 77-3021, 1981); Brown & Root, Inc., 80OSAHRC 97\/A2, 8 BNA OSHC 2140, 1980 CCH OSHD ? 24,853 (No. 76-1296, 1980); Iowa SouthernUtilities Co., 77 OSAHRC 32\/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD ? 21,612 (No. 9295,1977).\u00a0 Furthermore, the evidence regarding the crew’s work plan does not establishthat Hankee planned to wait until after the energized line was pulled away before the boomwas moved from its cradle.\u00a0 In fact, PP&L’s Assistant Safety Director at the timeof the fatality and \”chairman of the accident investigating report\” testifiedthat the work plan did not specify at what point in time the boom was to be moved intoposition.[[6\/]] Prior to the occurrence of the alleged violation in this case, theCommission had found that an employer’s work rule effectively implemented the requirementsof ? 1926.955(a)(6)(ii).\u00a0 Floyd S. Pike, supra.\u00a0 That decision gave employersnotice of the type of conduct necessary to comply with the standard, and the judgeproperly relied on Floyd S. Pike to support his disposition.”