“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4210 \u00a0 UNITED TELEPHONE COMPANY OF THE CAROLINAS, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 26, 1976DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.CLEARY, Commissioner:OnFebruary 7, 1974, Administrative Law Judge J. Marker Dern issued a decisionfinding respondent-employer, United Telephone Company of the Carolinas, inviolation of section 5(a)(2) of the Occupational Safety and Health Act of 1970,29 U.S.C. ? 651 et seq. [hereinafter cited as the ?Act?] for failing to complywith the safety standard published at 29 CFR ?\u00a01926.550(a)(15)(i).[1] A penalty of $600 wasassessed.Pursuantto section 12(j) of the Act, Commissioner Moran directed review on the followingissues:(1)Were the construction safety standards applicable to respondent as alleged?(2)Did the Judge properly conclude that 29 C.F.R. ? 1926.550(a)(15)(i) wasapplicable to the activities in which the respondent was engaged???????????? We affirm the Judge?s decision.Therespondent-employer is a utility operating telephone systems in South Carolinaand North Carolina. On July 30, 1973, three of respondent?s employees, twolinemen and a lineman-in-charge, were dispatched to a worksite three milesnorth of Ridgeland, South Carolina. Their job was to move telephone lines fromthe path of construction of Interstate Highway 95. The work required thatemployees dig a hole at a previously staked spot, set a new pole in the hole,transfer the telephone lines, and remove the old pole. The men performing thework were regarded as forming a construction crew. The work was under thesupervision of a construction foreman, Mr. Clark.[2]Uponarrival at the site shortly before noon, the crew observed that they would be workingin close proximity to electric power lines. During their lunch hour, theemployees discussed the hazards of working near electrical lines.Theline truck, operated by the lineman-in-charge, Mr. Odom, was positioned to digthe hole. Having completed that task, Mr. Odom moved the boom to the left.While the boom was being moved, it came close to, or made contact with, anelectric power line. Mr. Odom observed an arc, and called out to the linemen to?watch it.? The two linemen, apparently in contact with the truck, wereelectrocuted.Theaccident precipitated an inspection by the Secretary, after which respondentwas issued a citation alleging a serious violation of the Act for failure tocomply with the safety standards published at 29 CFR ? 1926.550(a)(15)(i) and29 CFR ? 1926.955(a)(6)(ii). Following a hearing, Judge Dern found respondentin violation of ? 1926. 550(a)(15)(i). He rejected the argument that thestandard was inapplicable to respondent because it was not engaged inconstruction work. The Judge, however, found ? 1926.955(a)(6)(ii) to beinapplicable to respondent because that standard is under Subpart D of Part1926, which is specifically applicable to the power transmission anddistribution industry, and respondent is not in that industry.[3]Subsequentto the issuance of the citation in this case the Department of Labor issuedproposed standards specifically applicable to the telecommunications industry.[4] These have since beenadopted, and are codified at 29 CFR ? 1910.268.[5] Under this section, themovement of telephone lines is described as field work,[6] and the condition forwhich respondent was cited is now regulated by ? 1910.268(b)(7) and ?1910.268(j)(4)(i) and (ii).Respondentargues that because the movement of telephone poles and lines is classifiedunder ? 1910.268(a)(1) as ?field work,? such work was never considered to be?construction work? and, therefore, was never intended to have been regulatedby the construction standards of part 1926. Respondent cites ? 1910.268(a)(2)(i)which states that the new standards do not apply to ?construction work, asdefined in ? 1910.12. . . .? We are not persuaded.At29 CFR ? 1910.12(b) ?construction work? is defined as ?work for construction,alteration, and\/or repair, including painting and decorating.? Erecting andremoving telephone poles, and transferring lines is reconstruction constituting?alterations,? and, therefore, ?construction work? as defined in ? 1910.12(b).It is also incidental to subsequent construction and part of the total work tobe performed. The language of ? 1910.268(a)(2)(i) and ?\u00a01910.268(a)(1)does not compel a different interpretation. Section 1910.268 was promulgated toregulate conditions unique to the telecommunications industry. 40 Fed. Reg.13437 (March 26, 1975). Some comments on the proposed regulations interpretedthe requirements as applying to all construction work. To dispel the confusion,? 1910.268(a)(2)(i) was promulgated to indicate that, having been developed forconditions unique to the telecommunications industry, the standards would notbe applicable to work which might otherwise qualify as ?construction? asdefined in ? 1910.12. 40 Fed. Reg. 13437 (March 26, 1975). The purpose of thatstandard is not, as respondent argues, to intimate that conditions nowregulated under ? 1910.268 were never previously considered ?constructionwork.? It is clear that erecting and removing telephone poles and transferringlines were reclassified at ? 1910.268(a)(1) as ?field work? to furtheremphasize that the regulations apply only to the telecommunications industry.Thus, we conclude that prior to reclassification the erection and removal oftelephone poles and the transfer of lines was considered ?construction work?and subject to all pertinent construction standards.Respondentalso argues that a review of the legislative history of the Contract Work Hoursand Safety Standards Act, 40 U.S.C. ? 327 et seq., popularly called theConstruction Safety Act, fails to show any intent that it apply to thetelecommunications industry. Respondent contends that, because the constructionstandards of 29 CFR ? 1926 were adopted as established federal standards fromthe Construction Safety Act, Part 1926 standards cannot be applicable to itsindustry. Respondent?s argument lacks merit.SubpartB of Part 1910 adopts established federal standards as OSHA standards. Section1910.11(a) specifically states that these established federal standards areextended to every employer, employee, and employment covered by the Act,thereby clearly indicating that these established standards will apply underOSHA to places of employment where they had not previously been applicable.Finally,respondent argues that the inapplicability of the construction standards to thetelecommunications industry can be inferred through the process in which theSecretary adopted specific construction standards for the power transmissionand distribution industry, codified in Subpart V of Part 1926 (29 CFR ?1926.950 et seq.). Respondent cites to ? 1910.12(d) and ?\u00a01926.950(a)(1)adding ?the erection of new electric transmission and distribution lines andequipment, and the alteration and repair of existing electrical transmissionand distribution lines? to the definition of construction work. According torespondent, many of the problems of the electric utility industry also exist inthe telecommunications industry, inasmuch as work is often performed in closeproximity to electrical lines and poles and other structures are often usedjointly by the two industries. Therefore, it is argued that if it were intendedto apply the construction standards to the telecommunications industry, asimilar amendment to the definition of ?construction work? would have beenadopted. We are not persuaded.Section1910.12(d) states that ?to the extent that it may not be already included? inthe definition of ?construction work,? electrical transmission shall beconsidered to be construction work. Therefore, it cannot be stated that theconstruction standards were not previously applicable to the electricaltransmission industry. Further, ? 1910.268(a)(3) states that operations whichqualify as construction work under ? 1910.12 are subject to all the applicablestandards of Part 1926. That the Secretary did not amend the definition of ?constructionwork? to expressly include the telecommunications industry implies that theconstruction standards were always intended to be applicable to thetelecommunications industry. Indeed, we read ? 1910.268(a)(3) as areaffirmation of the policy, set forth in ? 1910.12(a), which extends theapplicability of the Part 1926 standards to all employment and places ofemployment engaged in construction work. See 40 Fed. Reg. 13437 (March 26,1975). As previously noted, prior to being reclassified as ?field work,? thework involved in the instant case was ?construction? within the ambit of ?\u00a01910.12(b).Brieflystated, at the time of the citation the general construction standards wereapplicable to the erection and rearrangement of telephone lines. Subsequent tothe citation the Secretary adopted standards specifically applicable to thetelecommunications industry. We do not construe this action to suggest, asargued by respondent, that the general construction standards were neverapplicable to telecommunications. On the contrary, we interpret the Secretary?sactions as preempting the applicability of certain general constructionstandards by adopting standards specifically drafted for the telecommunicationsindustry.Neitherparty has disputed the Judge?s assessment of a $600 penalty, and we find noerror in that regard. See Thorlief Larsen & Son, Inc., 1974-75 CCHOSHD para. 18,826, BNA 2 OSHC 1256 (No. 370, 1974).Accordingly,it is ORDERED that the Judge?s decision is AFFIRMED and a $600 penalty isassessed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: AUG 26, 1976Appendix? 1926.550?Cranes andDerricks(a) Generalrequirements.(15) Except whereelectrical distribution and transmission lines have been deenergized andvisibly grounded at point of work or where insulating barriers, not a part ofor an attachment to the equipment or machinery, have been erected to preventphysical contact with the lines, equipment or machines shall be operatedproximate to power lines only in accordance with the following:(i) For linesrated 50kV. or below, minimum clearance between the lines and any part of thecrane or load shall be 10 feet.??1910.268?Telecommunications(a) Application.(1) This sectionsets forth safety and health standards that apply to the work conditions,practices, means, methods, operations, installations and processes performed attelecommunications centers and at telecommunications field installations, whichare located outdoors or in building spaces used for such field installations.?Center? work includes the installation, operation, maintenance, rearrangement,and approval of communications equipment and other associated equipment intelecommunications switching centers. ?Field? work includes the installation,operation, maintenance, rearrangement, and removal of conductors and otherequipment used for signal or communication service, and of their supporting orcontaining structures, overhead or underground, on public or private rights ofway, including buildings or other structures.?(2) Thesestandards do not apply:(i) Toconstruction work, as defined in ? 1910.12 . . .?(3) Operations orconditions not specifically covered by this section are subject to all theapplicable standards contained in this Part 1910. See ? 1910.5(c). Operationswhich involve construction work, as defined in ? 1910.12 are subject to all theapplicable standards contained in Part 1926 of this chapter.?(b) General.(7) Approachdistances to exposed energized overhead power lines and parts. The employershall ensure that no employee approaches or takes any conductive object closerto any electrically energized overhead power lines and parts than prescribed inTable R-2, unless:(i) The employeeis insulated or guarded from the energized parts (insulating gloves rated forthe voltage involved shall be considered adequate insulation), or?(ii) The energizedparts are insulated or guarded from the employee and any other conductiveobject at a different potential, or?(iii) The powerconductors and equipment are deenergized and grounded.?TABLER-2?Approach Distances to Exposed Energized Overhead Power Lines and Parts Voltage range (phase to phase, RMS) Approach distance (inches) 300V and less? (1) Over 300V, not over 750V 12 Over 750V, not over 2k 18 Over 2kV, not over 15kV 24 Over 15kV, not over 37kV 36 Over 37kV, not over 87.5kV 42 Over 87.5kV, not over 121kV 48 Over 121kV, not over 140kV 54 (1) Avoid contact \u00a0 \u00a0***(j)Vehicle-mounted material handling devices and other mechanical equipment.***(4) Derrick trucksand similar equipment.(i) This equipmentshall not be operated with any conductive part of the equipment closer toexposed energized power lines than the clearances set forth in Table R-2 ofthis section.?(ii) When derricksare used to handle poles near energized power conductors, these operationsshall comply with the requirements contai ed in paragraph (b)(17) and (n)(11)of this section.?SUBPART V?ADOPTIONAND EXTENSION OF ESTABLISHED FEDERAL STANDARDS? 1910.11?Scopeand Purpose(a) The provisionsof this Subpart B adopt and extend the applicability of, established Federalstandards in effect on April 28, 1971, with respect to every employer,employee, and employment covered by the Act.?? 1910.12?ConstructionWork(a) Standards.?The standardsprescribed in Part 1926 of this chapter are adopted as occupational safety andhealth standards under section 6 of the Act and shall apply, according to theprovisions thereof, to every employment and place of employment of everyemployee engaged in construction work. Each employer shall protect theemployment and places of employment of each of his employees engaged inconstruction work by complying with the appropriate standards prescribed inthis paragraph.?(b) Definition.?For purposes ofthis section, ?construction work? means work for construction, alteration,and\/or repair, including painting and decorating. See discussion of these termsin ? 1926.13 of this title.?(d) For thepurposes of this part, to the extent that it may not already be included inparagraph (b) of this section, ?construction work? includes the erection of newelectric transmission and distribution lines and equipment, and the alteration,conversion, and improvement of the existing transmission and distribution linesand equipment.?SUBPART V?POWERTRANSMISSION AND DISTRIBUTION? 1926.950 GeneralRequirements(a) Application.?The occupationalsafety and health standards contained in this Subpart V shall apply to theconstruction of electric transmission and distribution lines and equipment.(1) As used inthis Subpart V the term ?construction? includes the erection of new electrictransmission and distribution lines and equipment, and the alteration,conversion, and improvement of existing electric transmission and distributionlines and equipment.?MORAN, Commissioner,Dissenting:Thesafety standards set forth in 29 C.F.R. Part 1926 apply only to constructionwork. Therefore, when an employer is not performing that type of work, hecannot be held in violation of any of the standards contained in that part.Asmy colleagues point out, subsequent to the issuance of the citation in thiscase the Secretary of Labor issued proposed regulations specifically applicableto the telecommunications industry.[7] These regulations havesince been adopted and codified at 29 C.F.R. ? 1910.268.[8] They clearly state at 29C.F.R. ? 1910.268(a)(1) that the work for which respondent was cited, the?rearrangement . . . of conductors and other equipment used for signal orcommunication service and of their supporting . . . structures? is ?field? workand therefore subject to the regulations under 29 C.F.R. ? 1910.268.Furthermore, 29 C.F.R. ? 1910.268(a)(2)(i) states in no uncertain terms thatthe regulations under 29 C.F.R. ? 1910.268 do not apply to ?construction? work,as that term is defined in 29 C.F.R. ? 1910.12. Therefore, since the work doneby respondent is covered by the new regulations, as my colleagues concede, andsince those regulations by their very wording do not apply to constructionwork, it is manifest that the work done by respondent cannot be considered?construction? work and thus subject to the construction safety standards.Simplystated my colleagues are saying that the type of work performed by respondentconstitutes construction work if performed before the effective date of the newregulation, but that the same work is not construction work if it was performedafter that date.[9]Such a proposition is beyond the bounds of reasons. Either it is constructionwork or it isn?t. What is construction work one minute cannot be transformedinto something else in the next minute by a stroke of my colleagues? pens. Evena member of the Occupational Safety and Health Review Commission?or a majorityof that tribunal?s members?cannot make a silk purse out of a sow?s ear.TheSecretary of Labor?s regulation clearly indicates that the work here in issueis not construction work. That position was made a matter of public record aslong ago as August 28, 1973. It is entitled to great weight and should not bealtered unless it is clearly unreasonable, which it obviously is not in thiscase. Brennan v. Southern Constructors Service, 492 F.2d 498 (5th Cir.1974).Sincethis decision does not deal with all matters covered in Judge Dern?s decision,the same is attached hereto as Appendix A.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4210 \u00a0 UNITED TELEPHONE COMPANY OF THE CAROLINAS, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: March 11, 1974DECISION AND ORDERAppearances:Mr. Joe D. Sparks, Attorney at Law, Officeof the Solicitor, 1371 Peachtree Street, N.E., Atlanta, Georgia, for theComplainant\u00a0Mr. George R. Greer, Attorney at Law, P.O.Box 1107, 1001 Craven Street, Beaufort, South Carolina, for the Respondent\u00a0This is a proceeding pursuant to section10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.,hereafter called the Act) contesting a citation issued by the complainantagainst the respondent under the authority vested in complainant by section9(a) of that Act. The citation alleges that as the result of the inspection ofa workplace under the ownership, operation or control of the respondent,located at three miles north of Ridgeland, South Carolina, adjacent to U. S.Highway 17 and proposed I?95 temporary route and described as ?telephoneutility,? the respondent has violated section 5(a)(2) of the Act by failing tocomply with certain occupational safety and health standards promulgated by theSecretary pursuant to section 6 thereof.The citation, which was issued onAugust 7, 1973, alleges that the violation results from a failure to complywith standards promulgated by the Secretary by publication in the FederalRegister on December 16, 1972, (37 F.R. 27545 and 27580), and codified in 29CFR 1926. The description of the alleged serious violation contained on saidcitation states:Item No. 1 Failed to keep the minimumclearance of ten feet between all parts of a line truck, with center mountderrick and hydraulic boom, and 8KV electric power lines which had not beendeenergized at a site near Ridgeland, S. C., adjacent to U. S. Highway 17 atthe vicinity of South Carolina Electric and Gas Company power lines.?Item. 2 Failed to bond lifting equipmentto an effective ground when that equipment, the line truck with center mountderrick and hydraulic boom, was used near energized lines at the site nearRidgeland, S. C., adjacent to U. S. Highway 17.\u00a0The standards as promulgated by theSecretary provide as follows:29 CFR 1926.550(a)(15)(i). Except whereelectrical distribution and transmission lines have been deenergized andvisibly grounded at point of work or where insulating barriers, nor a part ofor an attachment to the equipment or machinery, have been erected to preventphysical contact with the lines, equipment or machines shall be operatedproximate to power lines only in accordance with the following:?(i) For lines rated 50kV. or below minimumclearance between the lines and any part of the crane or load shall be 10 feet;?29 CFR 1926.955(a)(6)(ii). Liftingequipment shall be bonded to an effective ground or it shall be consideredenergized and barricaded when utilized near energized equipment or lines.?Pursuantto the enforcement procedure set forth in section 10(a) of the Act, therespondent was notified by letter dated August 7, 1973, from William H. Duncan,Area Director of the Columbia, South Carolina area, Occupational Safety andHealth Administration, United States Department of Labor, that he proposed toassess a penalty for the violation alleged in the amount of $600.00.Afterrespondent contested this enforcement action, and a complaint and answer hadbeen filed by the parties, the case came on for hearing at Charleston, SouthCarolina, on December 11, 1973. No parties desired to intervene in the proceeding.ISSUESTheissues pertinent to resolving this proceeding are as follows:1.Did respondent violate section 5(a)(2) of the Act by failing to comply with thesafety standards published at 29 CFR 1926.550(a)(15)(i) and 29 CFR1926.955(a)(6)(ii)?2.Are the cited standards inapplicable to the respondent since, as contended byrespondent, the activities of the respondent, a telephone utility, are notincluded within the definition of ?construction work? as defined in 29 CFR1910.12(b)?3.If the respondent violated any of the alleged standards, was the resultingviolation or violations of a serious nature as defined by section 17(k) of theAct?4.What penalty, if any should be assessed for any violation of the Act?FINDINGSOF FACT1.The respondent, United Telephone Company of the Carolinas, is a utility whichoperates telephone systems in South Carolina and North Carolina (Para. I andII, Complaint, Answer, (TR 125, 141).2.On July 30, 1973, a three-man construction crew consisting of a lineman-in-chargeand two linemen were assigned the task of moving certain telephone wiresapproximately three miles from Ridgeland, South Carolina, which wasnecessitated by the construction of Interstate Highway I?95. The job requiredthe digging of a hole, setting a new pole, moving the telephone wires andremoval of the existing poles. The crew arrived at the work site shortly beforelunch, at which time they observed that they would be working in closeproximity to electric lines. During the lunch hour, the general hazards ofworking around electric power lines were discussed. The location for the newpole had been staked out and a line truck was positioned to permit a hole to bedug at the prescribed location. The outriggers of the truck were positioned andthe hole was dug. The hole digger was returned to its carrying position. Duringmovement of the boom to the left, the lineman-in-charge, who was operating theboom, observed an arc, called to the linemen to ?watch it? and immediatelymoved the boom out of contact with the electric wires.3.The boom came in actual contact with the 8kV power lines or at least so closeas to cause an arc. Testimony indicated that the boom would have to come withinone-half inch to cause an arc. Two linesmen apparently were in contact with thetruck and were electrocuted.4.The electric lines were not de-energized at any time during the performance ofthe activities described above. Neither was a ground stick driven nor wereinsulating barricades erected around the truck or electrical lines (TR 21?47,138, 139, Complainant?s Exhibit 1A through 1H, Complainant?s Exhibit 2A through2G, Complainant?s Exhibit 3A, 3B and Respondent?s Exhibit A and B).5.The work at the job site was under the jurisdiction of the constructionsuperintendent of the company and his subordinates. The vehicle was of the typeused in construction work and the crew involved was designated as aconstruction crew. The lineman-in-charge is the immediate supervisor charged bythe company with the performance of the task and safety at the job site (TR45?46).6.The operation of the boom within proximity of energized power lines creates andextremely hazardous condition since the movement of the boom or swaying of thelines into contact with the energized lines will thereby cause an electricalshock to be transmitted to persons in contact with the truck. The resultingshock to such persons under conditions present in this case could result indeath. Respondent?s lineman-in-charge knew or should have known of the hazard presentedby the conditions observed at the job site (TR 45).7.Following an investigation by a compliance officer of the office of theOccupational Safety and Health Administration, a citation for serious violationcharging respondent with the violation of the aforementioned two safetystandards, which were joined as a single violation, was issued August 7, 1973.8.A notice of proposed penalty in the amount of $600 was also issued as was anotification that the conditions were to be abated ?without delay but no laterthan August 10, 1973.? The operation of the boom or other equipment withinproximity to energized power lines of 8kV present conditions of extreme gravityto employees exposed to it.9.The proposed penalty of $600 was determined in accordance with theadministrative guidelines of the Secretary.DISCUSSIONRespondentwas cited for violation of standards promulgated as Safety and HealthRegulation for Construction.Section29 CFR 1910.12(b), Definition, reads:For purposes of this section ?constructionwork? means work for construction, alteration, and\/or repair, includingpainting and decorating.?Itis reasonable to conclude that when the Secretary intended to exclude aparticular industry or type of work from the coverage of Safety and HealthStandards under the Act, he spelled this conclusion out in his regulations inclear and unequivocal language. This is now being contemplated in theSecretary?s proposed standards for telecommunication but which have not beenpromulgated and, of course, do not have presently any effect. Nowhere inpresent Safety and Health Regulations is there an exclusion of coverage of thetelecommunication industry.Constructionmust be construed in the common acceptance found in the industry. Respondentwas constructing or altering its telecommunication line, moving a pole. See?Construction? Words and Phrases, Vol 8A page 486, with reference to telephonelines and construction. In this act of construction, the accident arose whichlead to the issuance of the citation. Therefore, it is concluded thatrespondent was properly cited under subsection N, Occupational Safety andHealth Regulations for Construction involving Cranes, Derricks, Hoists,Elevators and Conveyors.Withrespect to violation of section 29 CFR 1926.550(a)(15)(i), the evidence isrelatively undisputed. Respondent?s employees were in the process of relocatinga pole, when the lineman-in-charge, who was operating a derrick, elevated theboom which came near to or came in contact with an energized 8kV line. Thestandard cited prohibited use of ?machines? within ten feet of ?lines rated 50kV or below.? Therefore, a violation of the standard occurred.Isthe violation of the safety standard a violation attributed to respondent?Respondent refers to the instructions of its employees as to clearancesrequired under the ?Bell System Practice? a manual of the Bell TelephoneCompany, and of its instructions to the lineman-in-charge with respect to such?Practice,? thereby implying that the violation was an isolated brief violationby an employee unknown to the employer and consequently not a violation of therespondent. An employer may be exempt from responsibility for a violation wherethe employee violates common policy and exposes himself and others to injuryprovided the accident is caused by an employee action; the action or hazard isan isolated incident of short duration; the action is against companyprocedures and participation in the action is not made with the knowledge of asupervisor. In the instant case, a lineman-in-charge, at the work site,represented the respondent, had knowledge of the energized electrical line, andacted in such manner as to cause contact of the boom he was operating with theenergized line. This knowledge is imputed to the respondent and consequently,respondent is responsible for the violation of the safety standard.Theevidence on the part of complainant failed to establish a violation of safetystandard 29 CFR 1926.955(a)(6)(ii) since the standard is under subpart D involvingPower Transmission and Distribution in which businesses respondent was notinvolved. The standard is inapplicable to respondent.Havingfound respondent in violation of a safety standard, was the violation of aserious nature?Section17(k) describes ?serious? violations in the following language:For purposes of this section, a seriousviolation shall be deemed to exist in a place of employment if there is asubstantial probability that death or serious physical harm could result from acondition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such placeof employment unless the employer did not, and could not with the exercise ofreasonable diligence, know of the presence of the violation.?Afact recognized by an ordinary layman is that coming into close proximity to ahighly energized electrical line constitutes a danger which could result inserious physical harm or death. This was recognized and discussed by respondent?semployees at the work site. Section 17(j) of the Act sets forth the criteria bywhich the penalty for an infraction is to be determined. Evidence concerningthe violation?s gravity and the employer?s size, his prior history ofviolations and good faith must be considered. The Commission has longrecognized the gravity of the violation to be the most significant factor.Factors requiring consideration in gauging gravity include the number ofemployees exposed; the duration of their exposure; the precautions takenagainst injury; and the degree of probability of occurrence of injury.Onthe basis of the record evidence, the gravity of the violation in this casemust be ranked as high. Three employees were exposed to the contemplatedhazard. The safety practices of the respondent are of a high quality and weredisseminated with certainty to its employees. Under the administrativeprocedures of the complainant, considerations, involving the proposed penalty,were given to good faith and prior compliance history of the respondent and aproposed penalty of $600 was issued. Under the undisputed facts, it is believedthat such proposed penalty is appropriate for the serious violation of thesafety standard.CONCLUSIONSOF LAW1.Respondent at all material times hereto is an ?employer? engaged in ?commerce?as those terms are defined in section 3 of the Act and is subject to theprovisions of the Occupational Safety and Health Act of 1970.2.On July 30, 1973, respondent was in violation of 29 CFR 1926.550(a)(15)(i),which is of a serious nature within section 17(k) of the Act.3.Complainant failed to prove a violation of 29 CFR 1926.955(a)(6)(ii).ORDERAccordingly,it is Ordered that:Thecitation for serious violation of 29 CFR 1926.500(a)(15)(i), penalty of $600and abatement date are affirmed.Theportion of the citation referring to violation of section 29 CFR1926.955(a)(6)(9)(ii) is vacated.Dated this 7th dayof February, 1974.?J. MARKER DERNJudge, OSHRC\u00a0Copies bycertified mail to:?Mr. Joe D. SparksMr. EdwinHernandezAttorneys at LawOffice of theSolicitor1371 PeachtreeStreet, N. E.Room 339Atlanta, Georgia30309[1] The texts of thestandards cited in this opinion are attached as an appendix.[2] Mr. Clark was notat the site at the time of the accident.\u00a0[3] Neither partyexcepted to the Judge?s vacating of this item and it is not before us.[4] 38 Fed. Reg.23038 (August 28, 1973).[5] The standards hadnot been adopted at the time the parties submitted their briefs. As proposed,the standards were to be codified at ? 1910.330 et seq. They were adopted,however, at ?\u00a01910.268. The proposed standards cited by the parties aresubstantively similar to the adopted standards. We will cite to the standardsas codified.[6] 29 CFR ?1910.268(a)(1).[7] 38 Fed. Reg.23038 (August 28, 1973).[8] 40 Fed. Reg.13437 (March 26, 1975).[9] In other words ifrespondent was cited while performing the same work today, Messrs. Cleary andBarnako would now change positions and say that 29 C.F.R. ? 1910.268 appliedbecause the work is not construction work.”