“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4105 UTILITIES LINE CONSTRUCTION COMPANY, INC, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 16, 1976DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners,BARNAKO, Chairman:A January 20, 1975 decision of Judge DavidJ. Knight is before this Commission for review pursuant to 29 U.S.C. ? 661(i).Judge Knight affirmed citations charging Respondent with serious violations of29 C.F.R. ? 1926.950(b)(1)[1] and ? 1926.950(c)(1).[2] He assessed penalties of$650 for each violation. For the reasons which follow, we affirm his decisioninsofar as it finds Respondent in violation of ? 1926.950(b)(1), but reversehis finding of a violation of ?\u00a01926.950(c)(1).The relevant facts are as follows.Respondent was engaged in upgrading a power line in Weston, Massachusetts forthe Boston Edison Company. The work included stringing a \u215c inchcopperweld messenger wire along poles containing existing lines. On the day inquestion, a crew consisting of journeyman linemen, Martin and Waiswilos, wasperforming this work.Prior to the start of work that day,Martin and Waiswilos drove along the road examining the poles they were tostring. Waiswilos noticed that one of the poles had a line running to it whichhad not been there when they had previously worked on the pole several weeksbefore. The new line was attached to an aluminum shoe which was in turnattached to the pole by an eye bolt. The line dead-ended at the pole, and itsfinal ten feet was temporarily coiled up. Upon noticing the line, Waiswilosasked whether Martin knew what it was, but received no answer. Because of theappearance of the line, Waiswilos assumed that it was not energized. In fact,however, the line was energized to 2400 volts. A determination that it wasenergized could have been made in several minutes by checking the manner inwhich the line was connected a short distance down the road. Additionally, atest on the line itself could have been made to determine whether it wasenergized. Waiswilos testified, however, that even if he was going to work onthe pole containing the line, he would only have tested to determine whether itwas energized if he was going to work on the line itself.A number of other lines were also attached to thepole. Connected to crossarms at the top of the pole were three wires which ranparallel to the road. The new line, referred to as a primary lateral, ranacross the road and was attached to the pole a short distance below thecrossarms. Several feet below and parallel to the primary lateral ran asecondary line energized to 110?220 volts.[3]In stringing the messenger wire over apole, one member of the crew would approach the crossarm in an insulated bucketlifted by an extensible boom attached to a truck. He would throw a rope leaderattached to the wire over the crossarm. The leader would then be pulled by thetruck until the wire was taut. On each pole, this work required that a linemanbe near the wires at the top of the pole for only a minute or two. It wasrelatively unsophisticated work for journeyman linemen to perform.Work proceeded without incident in themorning with Waiswilos working in the insulated bucket, and Martin on theground. In the afternoon, Martin began working in the bucket. While working atthe pole containing the new primary lateral, Martin apparently encountered somedifficulty when attempting to throw the rope leader over the crossarm. Hestepped out of the bucket and stood with one foot on the secondary line. Hethen grabbed the primary lateral with his hand, whereupon he was electrocuted.After the accident, it was discovered that Martin was wearing only cotton sweatgloves, which had no insulating properties, and was not wearing rubber gloves.He had, however, been wearing rubber gloves earlier, while working in thebucket.Respondent had about 35 crews at the timeof the accident. Supervising these crews were five general foremen and twoforemen. Each crew would normally be visited three times a day by a supervisor,who checked for safety violations as well as the progress of the work. Asupervisor had the authority to stop a job if the employees were workingunsafely. Additionally, on this particular project the worksites were checkedfor safety by Boston Edison supervisors. Each crew member was also required toreport safety infractions committed by other members to the general foreman.Concerning this requirement, however, Waiswilos testified that he would discusssuch a violation with the other employee rather than report it. Both Martin andWaiswilos were experienced linemen, and there is no evidence that either had,to Respondent?s knowledge, previously violated safety rules.Respondent employed a full-time safetydirector, who visited each crew two or three times per year to discuss safetypractices. Inspections of each crew at least twice a year were also conductedby safety engineers from Respondent?s workmen?s compensation insurance carrier.Hour long monthly safety meetings were held by each crew. When seriousaccidents occurred, special field letters concerning how similar occurrencescould be prevented were circulated, and discussed with the crew by supervisors.Special safety bulletins concerning matters of general interest which thesafety director thought significant were also issued. Occasionally, safetydinners with all supervisors in a geographical area would be held, and safetywas among the subjects discussed at the annual meeting of all companysupervisors. All linemen were trained in subjects such as pole-top rescue andcardio-pulmonary resuscitation.Enforcement of safety rules wascoordinated with Local 104 of the International Brotherhood of ElectricalWorkers. If union members violated safety rules, the union?s safety committeecould recommend that they be suspended. Both the chairman of the union?s safetycommittee and the union?s business manager testified that Respondent had a goodreputation for maintaining safe working conditions.Respondent had a rule that requiredlinemen to wear rubber gloves ?ground-to-ground,? that is from the time theyleft the ground to work on a pole until they returned. Concerning this rule,Waiswilos testified:Q. Now, with regards to the rubber gloverule, were efforts made on the part of the company, to your knowledge, to seeto it that employees were aware of the rubber glove rule??A. Yes, that was so. There was a constantreminder of wearing rubber gloves.?Q. Does your general foreman remind you ofthat??A. Yes.?Q. Has the general foreman ever told youthat if either you or Mr. Martin were found up on the pole without rubbergloves that he would suspend you??A. That?s right.?Q. Did you tell that to Martin??A. That was told to everyone in the wholebarn constantly.??Officer Bentley, a police officer of theTown of Weston, who directed traffic in locations where Respondent?s crews wereworking, and who was working with the crew at the time of the accident,testified.Q. Whenever they went up in the air theywore their gloves, all the time they were in the air??A. Yes sir. Even working on the groundthey wore them.?The business manager of Local 104 of theI.B.E.W. testified as follows:Q. When Boston Edison watches the work ofthe employees of its contractors, their performance, if it discovers any of thecontractor?s employees not wearing rubber gloves when they are in the air, willthey immediately stop the crew from working and shut the job??A. Not necessarily. They will report tothe general foreman what they have seen.?Q. And what will they direct them to do??A. They?ll direct them to do nothing,because they don?t have the power to direct them, but they will check it, andif the man is without rubber gloves, the man will be suspended.?Q. Right then and there??A. Yes.?Q. And this has happened??A. Yes.?Q. And the men know about it and talkabout it.?A. Right.?Q. And you tell them constantly, to wearrubber gloves when you are up there??A. Right.?Additionally, the manager of Respondent?soperations in the Boston area testified that he had personally suspendedemployees who had violated the rubber glove rule.In addition to the rubber glove rule,Respondent had two other work rules which were violated at the time of theaccident. One prohibited employees from stepping out of insulated buckets, andthe other required unknown lines to be considered energized. There was alsoevidence that it was considered poor safety practice to step on secondarylines, although there is no indication that Respondent had a rule prohibitingthis practice.[4]The record shows that, on several previous occasions on this particular job,Waiswilos had observed Martin step onto secondary lines, and had ?chewed himout? about it, but had not reported the incidents to company officials.The record establishes noncompliance withthe two cited standards. Section 1926.950(c)(1) was violated when Martincontacted the 2400 volt primary lateral without wearing insulating gloves andwithout otherwise being insulated from the line. The violation of ?1926.950(b)(1) occurred when the crew began work in the vicinity of the primarylateral without determining whether the line was energized. The latter standardexplicitly requires that one of the conditions to be determined ?beforestarting work? is ?energized lines.?Respondent argues, however, that it is notresponsible for these instances of noncompliance with the standards becausethey were committed by an employee, in violation of company safety rules, in sucha manner as to have been unforseeable by Respondent. Respondent frames theissue as follows:The question present in this case . . . iswhether respondent has taken reasonable precautions to prevent its employeesfrom being exposed to the hazards sought to be avoided . . . In making thisdetermination, the employer?s instructions to his employees, the training whichthey have received and their skills should all be taken into account. Inquiryshould be made into the question of whether the employer knew or reasonablycould have known that the employees involved would disregard the instructionsand training they had received and still commit the violation.?As Respondent states, when a violation ofa standard is committed by an employee, whether the employer is responsibledepends on whether the employee received adequate training and instructionsdesigned to prevent the violation. Brennan v. Butler Lime & Cement Co.,520 F.2d 1011 (7th Cir. 1975). The employer must also establish and enforcework rules requiring compliance with the standard. B-G MaintenanceManagement, Inc., Docket No. 4713 (June 1, 1976); The Weatherhead Co.,Docket No. 8862 (June 10, 1976); Engineers Construction, Inc., 20 OSAHRC348, BNA 3 OSHC 1537, CCH OSHD para. 20,012 (1975). Only if the employer takessuch steps can it be said that a violation which occurs in spite of them isunpreventable.In this case, there is no evidence thatRespondent instructed its employees to determine whether lines were energizedbefore working in proximity to them. Instead, the record indicates thatRespondent relied on its rule that unknown lines should be considered to beenergized.[5] Such a rule however,cannot be considered a substitute for the requirement of the standard. Indeed,the standards governing work on power lines contain a separate requirement thatunknown lines be considered energized until determined otherwise. See 29 C.F.R.? 1926.950(b)(2) and 954(a). As this case shows, the assumption that a line isenergized is not an adequate substitute for the actual knowledge of whether itis or is not energized. We therefore hold that the Judge properly foundRespondent in violation of ? 1926.950(b)(1).Complainant argues that Respondent?ssafety program was also inadequate with respect to the alleged violation of ?1926.950(c)(1). He contends that Respondent did not take sufficient precautionsto prevent Martin from standing on secondary lines and from stepping out of theinsulated bucket. In particular, he argues that Waiswilos? failure to report priorinstances of such occurrences establishes a breakdown in Respondent?senforcement of its rules. The Judge agreed, finding that Respondent could haveprevented the accident by requiring strict adherence to the requirement thatcrew members should report safety infractions committed by their colleagues.There would, however, have been noviolation of the standard when Martin stepped out of the bucket and stood onthe secondary if he had been wearing his rubber gloves. Since the secondaryline was energized to less than 2.1 kilovolts, the standard does not provideany minimum distance that must be maintained from it, and does not prohibitcontact with it. While contacting the secondary may well have been an unsafepractice, no violation of the standard can be predicated on it.Similarly, had Martin worn his rubbergloves when he stepped out of the insulated bucket, the standard would not havebeen violated. The standard explicitly provides that ?gloves . . . shall beconsidered insulation of the employee from the energized part.? By requiringlinemen both to wear rubber gloves and to stay in insulated buckets, Respondenthas established partially redundant safety rules. Either rule, had it beenfollowed, would have prevented the violation under the circumstances of thiscase.[6] Thus, even assuming thatRespondent did not adequately enforce its rule against stepping out ofinsulated buckets,[7]if its rule requiring the wearing of rubber gloves was adequately enforced, itdid not violate the standard.The record reveals that Respondent?srubber glove rule was repeatedly and effectively communicated to employees,that violations of the rule were rare, that adequate means to discover suchviolations were taken, and that when violations were discovered, the rule wasenforced through disciplinary measures. Under these circumstances, Respondentcould not have prevented the violation, and can therefore not be heldresponsible. Horne Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5thCir., Feb. 26, 1976); Engineers Construction, Inc., supra.In assessing a penalty for the violationof ? 1926.950(b)(1), the Judge properly considered Respondent?s size, goodfaith, and prior history, along with the gravity of the violation. We thereforeaffirm his assessment.Accordingly, the citation for violation of29 C.F.R. ? 1926.950(b)(1) and the corresponding proposed penalty are affirmed.The citation for violation of 29 C.F.R. ?\u00a01926.950(c)(1) and its proposedpenalty are vacated. It is so ORDERED.?FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDATED: SEP 16, 1976?MORAN, Commissioner, Concurring in Part, Dissenting inPart:I agree with the lead opinion insofar asit vacates the citation alleging noncompliance with 29 C.F.R. ? 1926.950(c)(1).I do not agree, however, which my colleagues? failure to recognize that the lawplaces the burden on complainant to establish that respondent possessed therequisite degree of knowledge of the alleged violation. That failure hasresulted in the erroneous affirmance of the 29 C.F.R. ? 1926.950(b)(1) charge.It is now well-settled that knowledge ofthe existence of a violation, either actual or constructive, is an essentialelement of any violation of the Act. This has been acknowledged by threeCircuit Courts.[8]It was also announced as the proper rule of law by this Commission almost fouryears ago in a decision[9] which has not beenoverruled by any ?clearly stated [change] accompanied by a statement of thereasoning behind the change.?[10] Therefore, thecomplainant?s case must establish that respondent knew or, with the exercise ofreasonable diligence, should have known of the existence of the conditions orpractice upon which the alleged violation is based.[11] Footnote 5 of themajority opinion, in effect, applies the very reverse of that rule by requiringemployer?s to prove a lack of knowledge.My colleagues? summarization of theevidence as to the ? 1926.950(c)(1) charge is accurate and clearly shows thatthe evidence is insufficient to establish actual or constructive knowledge ofrespondent. They err, however, in stating that there was no evidence toindicate that respondent instructed its employees to determine whether lineswere energized before working near them. In fact, complainant conceded theopposite when he stated, in his brief to the Judge after trial:Indeed, the normal procedure was to checkto see if a line was energized. [TR 91]. Again, this clearly was not done inthe instant case.[12]?It was reasonable for respondent to expectexperienced journeymen to adhere to an acknowledged work policy which requiredthat lines be checked before beginning work thereon. The testimony of two unionofficials shows that a journeyman ?is the ultimate as far as a lineman goes?and that they are extremely qualified, completely skilled employees. Underthese circumstances, the evidence does not establish that respondent shouldhave known of the failure of its employees to ascertain that the new line wasenergized. Furthermore, it is clear that respondent had no actual knowledge ofthis situation. Accordingly, the ? 1926.950(b)(1) charge should also bevacated.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4105 UTILITIES LINE CONSTRUCTION COMPANY, INC, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 20, 1975DECISION & ORDERAppearances:For the Complainant: Albert H.Ross, Regional Solicitor U.S. Department of Labor Boston, Massachusetts byWillis Goldsmith and Paul J. Katz, Esqs.\u00a0For the Respondent: Anthony J.Obadal, Esq. Hunton, Williams, Gay & Gibson Washington, D.C.\u00a0For Employees: None\u00a0On August 6, 1973, Utilities LineConstruction Company, Inc., of Jenkintown, Pennsylvania (Respondent), contesteda citation issued on July 16, 1973, by the Occupational Safety and HealthAdministration of the U.S. Department of Labor (Complainant) which alleges twoserious violations of safety standards promulgated under the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651, et seq.,[13] and assesses a proposedpenalty of $650 for each alleged violation. Immediate abatement of the allegedviolations is required by the citation.The issuance of the citation resulted froman inspection by Complainant on June 25, 1973, of Respondent?s worksite locatedat pole 30\/53 on the corner of Summer Street and Loring Road in Weston,Massachusetts. It alleges that:(1) Respondent failed to determineexisting conditions before starting work in violation of the standard at 29C.F.R. ? 1926.950(b)(1);[14] and(2) It failed to assure that its employeewas insulated or guarded by protective equipment before approaching exposedenergized parts in violation of the standard at 29 C.F.R. ?\u00a01926.950(c)(1).[15]Complaint and answer were filed, the formeralleging and the latter admitting the necessary jurisdictional facts. Thematter came on for hearing on January 9 and 10, 1974, with both sidesrepresented by counsel and no appearance by or for employees[16] (Transcript, Tr. 3).Post-hearing requests and briefs were filed by April 4, 1974.The Evidence:On June 21, 1973, at approximately 1:15p.m., Respondent?s lineman, Irenne Martin, stepped out of the bucket which hadlifted him to a point near the top of pole 30\/53 onto the tri-plex secondarylateral wire with his left foot; and with his right hand, he grabbed theprimary lateral which was level with (and no more than a foot from) his head.The former wire carried 110 volts and the latter 2,400 volts. Within threeseconds, his left foot began to spark and he slumped over (Stipulation, Tr.3?7, and Officer Bentley, Tr. 10?12). He was pronounced dead on arrival at theWaltham, Massachusetts, Hospital at 1:30 p.m. The parties stipulated thatelectrocution was the cause of death (Tr. 127).At that time, Irenne Martin was one of acrew of three (two linemen and a driver) engaged in stringing a 3\/8 inchcopperweld messenger wire on the poles along Summer Street (Tr. 47). The wholearea was in the process of being converted to increase the power available from4 to 13.8 kilovolts (Tr. 69?74 and Exhibit R?1). That morning, the lead linemanof this crew, Anthony A. Waiswilos, Jr., rode the bucket, throwing the wireover the arms of the pole. His co-worker on the ground would attach the rope tothe truck, and the line would be dragged to the next pole where the processwould be repeated (Tr. 86?87, 93). One thousand feet was strung that way thatmorning. Mr. Martin was to ride the bucket in the afternoon; and once in, wouldstay in the bucket from pole to pole (Tr. 79). This is apprentices? work, notthe first-class linemen?s; it was ?dumb work? (Tr. 87). The line can be throwneasily wearing the protective gloves (Tr. 97), a leather glove worn over a10,000-volt rubber glove over a cotton sweat glove (Tr. 51). The bucket itselfwas insulated against 30,000 volts (Tr. 81).Officer Bentley of the Weston PoliceDepartment on traffic detail [the flag man (Tr. 23?24)] at the scene does notremember whether Irenne Martin was wearing protective gloves when he grabbedthat 2,400-volt primary lateral (Tr. 8 and 11), although he believes?withoutbeing positive?that the gloves were not being worn at the time; there were nogloves on the ground where Mr. Martin fell from the pole nor on his hands(Exhibit C?1, page 5). He could have taken them off while in the bucket (Tr.32?33). At the hospital, it was reported that the deceased was wearing whitecotton sweat gloves (Tr. 27, 30?31). The lines where Mr. Martin had beenworking were not sleeved (Tr. 11?12).Mr. Waiswilos testified that, on that day,Mr. Martin had been wearing his brown rubber gloves and ?As far as I canremember, he was wearing his gloves? when he went up in the bucket just priorto his accident (Tr. 51). However, Mr. Waiswilos told the Complainant?sCompliance Officer who conducted an investigation four days after the accidentthat ?I. Martin stepped from bucket truck with no rubber gloves on to triplexcable to throw hand line over X arm? (Tr. 53 and Exhibit C?2). But he did notactually see Mr. Martin without the gloves at the time of the accident nor didhe witness him getting out of the bucket (Tr. 82). That Martin was not wearinghis gloves and had stepped out of the bucket were his conclusions based on thefacts that Martin had died, had been out of the bucket and had no gloves onwhen he fell from the pole (Tr. 82). He did see Mr. Martin out on the wire andconcluded that he was without the gloves (Tr. 85), but he did not see himtaking them off (Tr. 83). At the most, it took a minute and a half from thetime Mr. Martin went up in the bucket to the point when Mr. Waiswilos tried tobring him down (Tr. 241). There was no supervisor present at the time of theaccident (Tr. 90).On the day of the accident, neitherlineman knew whether the primary lateral, which Martin had grabbed, wasenergized (Tr. 59?60). Mr. Waiswilos didn?t think it was (Exhibit C?1, page 5).That wire had not been on the pole some three weeks before when the men werethere last (Tr. 58). In the morning of the day of Mr. Martin?s death, he andMr. Waiswilos rode by the pole looking over the work to be done that day, andthe latter remarked on seeing the primary lateral, ?What the hell is that?? Mr.Martin didn?t reply (Tr. 59?60 and 76?77). No check on the status or conditionof the wire was made because of its make-up: 10 to 12 feet coiled up as atemporary line which dead-ended there into an aluminum shoe (Tr. 60). This lineextended from the pole across Summer Street and down Loring Road (Tr. 76). Itwould have taken but a few minutes to check the line out some five poles up thestreet (Tr. 60?61). Its appearance did not tell whether it was energized (Tr.91). However, Mr. Waiswilos would have treated this unknown line as ?hot? orenergized, and he believes that Mr. Martin would also have done so (Tr. 86).The map or schematic drawing of the conversion of the area (Exhibit R?1) was inthe glove compartment of the vehicle in which they were riding that day (Tr.77). The ?in-service date? for the increased capacity of the system is markedon this map as ?Nov. 1, 1973,? and this map did not indicate whether theprimary lateral was energized (Tr. 91).Anthony Waiswilos, as the lead lineman onthat day (Tr. 37), programs and decides how the job is to be done inconsultation with his partner (Tr. 41). He receives more money in this position[.50 to .55 more per hour (Tr. 289)] to make sure the proper stock is on handto do the work, to make out the unit sheets (i.e., the work accomplished duringthe day), and generally to keep the job moving (Tr. 41?43).The men on the crew work together (Tr. 44)and the lead lineman doesn?t assign any job (Tr. 47); nor is it his function tohire, fire or discipline any other employee (Tr. 78). But each member of thecrew has a duty to the other to see to it that each works safely and helps theother out (Tr. 66?67). But, Mr. Waiswilos was not watching Mr. Martin everyminute, and he wouldn?t look for any particular thing until after there?s somekind of problem (Tr. 83). And he wouldn?t have reported infractions to thecompany; the men would talk about it themselves (Tr. 78?79). Mr. Waiswiloswouldn?t work with a problem crew member (Tr. 79). Mr. Loughman, BusinessManager of these men?s union whose testimony is detailed below, testified thatevery crew member is responsible for reporting the breaking of any safety ruleto the general foreman (Tr. 230).Charles Long, Respondent?s manager (Tr.277), testified that about 15 crews were working on this Boston Edison projectwith two general foremen and one roving foreman. Additionally, one foreman wasassigned to this project (Tr. 279). The general foreman is totally responsiblefor the people in all areas; he is the supervisor (Tr. 278), and he wouldoversee an operation as large as the project underway (Tr. 279), being at eachwork site at least three times a day (Tr. 280). Boston Edison, at the time, hadfour supervisors and six construction inspectors (Tr. 280). They could put astop to the work for any condition and contact the Respondent?s general foremanwho would take the necessary action (Tr. 281).According to Mr. Long, a three-man crewwould not have a foreman assigned to it (Tr. 291). One would be assigned to a?bull crew,? a combination of two or more crews doing critical work (Tr. 279,290?291). Mr. Waiswilos, on June 21, 1973, was not a foreman but a lead linemanand, as such, could not prevent a crew member from going up a pole (Tr. 291?292).James A. Loughman, the Business Manager ofLocal 104, International Brotherhood of Electrical Workers, whose jurisdictionextends to areas in four New England States (Tr. 217?218), who is a journeymanlineman and has been in the business for 23 years, testified that a journeymanlineman is an extremely qualified, completely skilled employee (Tr. 219). Inresponse to a question of whether a supervisor is required whenever ajourneyman approaches a hot line based on that man?s skill, he stated that itis not going on right now (Tr. 223?224).The lead lineman on a crew may not hire,fire or discipline another employee, and each crewman (except an apprentice)oversees the other (Tr. 220). The lead lineman is not part of management (Tr.221), and his duties are as Mr. Waiswilos described.According to this witness, there is noneed for the presence of a supervisor whenever a man is in the air nearenergized wires; nor was it necessary to sleeve the lines on pole 30\/53 becausethere was enough clearance for the bucket (Tr. 224?225). There is a union rulerequiring the employees to wear their gloves ground-to-ground (from the timethey leave the ground and go up the pole until their return), and a man will bepenalized for an infraction of this rule (Tr. 225). In Mr. Loughman?s memory,he has suspended man twice in five years for violating this rule (Tr. 228?229).Irenne Martin was a member of Local 104(Tr. 222), and Mr. Loughman is familiar with his background and reputation (Tr.221). He had been tested by the Local (Tr. 222?223) and was regarded as a goodand capable lineman serving at times as the crew?s head lineman (Tr. 222).Anthony Waiswilos is also known in the field as a skilled journeyman and hasserved as the general foreman.Commenting on Officer Bentley?s reportthat Irenne Martin had a habit of standing on secondary wires (Tr. 20), that hedid so on the morning of the day of his death[17] (Tr. 22 and 25), thatAnthony Waiswilos told him not to do it and had told the Officer that Martinhad this habit (Tr. 30), and that Waiswilos had ?chewed him out? pretty goodafter he had done it for a second time (Tr. 31, 33?34), Mr. Loughman said thatalthough anyone on a crew has the responsibility to report a violation (Tr.230), he doubts that this type of infraction would be reported because it isnot ?horrendous? (Tr. 231).Mr. Loughman testified that in his opinionthe Respondent did not violate the Occupational Safety and Health Act (Tr.236?238).Thomas J. Greeley, a member of Local 104?sExecutive Board and Chairman of its Safety Committee and who has been a linemanfor 23 years, investigated the accident four days later on June 25, 1973 (Tr.191?193). No recommendations were made to the Respondent that anyone bedisciplined as a result of the accident. There was no cause found for such a recommendation.The lead lineman (Waiswilos) had no control over Martin?s actions. Nobody knowsexactly what happened; it?s all conjecture and nobody could be held responsible(Tr. 193).He testified that the journeyman is theultimate as far as a lineman goes (Tr. 194) and does not require one-to-onesupervision (Tr. 195?196). In the trade, the journeyman would look at everyunknown line as energized; and he knows of the ground-to-ground rule on thewearing of rubber gloves; and the rules against stepping out of the bucket oronto any conductor (Tr. 195). He would have done the job the same way as wasbeing done (Tr. 198), but he would have disciplined a lineman with time off forstepping out of the bucket onto secondary lines twice (Tr. 209). In his opinion,if a man works unsafely, he should definitely be disciplined (Tr. 210). But thelead lineman has no power to discipline (Tr. 216).Respondent?s safety program was describedby its Safety Director. James J. Woods, Jr. (Tr. 245). Respondent has been amember of the National Safety Council for 18 years and retains a full-timeSafety Director (Tr. 248). He visits all crews in all states where work isbeing done at least two or three times a year and more often in troubled areas(Tr. 248?249). Its insurance carrier inspects all crews twice a year and checksmonthly with supervisors and managers and four times a year with the generalforemen (Tr. 249).The Company?s safety manual, covering 102pages, was completely revised in 1973, and that contains rules for every typeof work (Tr. 249). All reports on serious accidents are posted, and letters aresent to all crews to let all men know what can happen to the victims so itshouldn?t happen again (Tr. 250?251).A safety news bulletin and field lettersare sent out periodically on safety subjects (Tr. 251). One-hour, monthlytailboard discussions are held on 37 different safety subjects taken one by one(Tr. 252). Safety articles appear in the company magazine (Tr. 253). Annualtwo-day meetings are held which include safety topics attended by the generalforeman on up (Tr. 253?254).The Safety Director participates withunion committees in training apprentices and generally works closely with theunions and their safety people (Tr. 254).In Mr. Woods? report of this accident, hereferred to Mr. Tony Waiswilos as the foreman (Tr. 264?265), but this did notdescribe his function but only differentiated him from the rest of the membersof the crew (Tr. 269?270). Mr. Waiswilos told him he thought the primarylateral was dead because of its appearance (Tr. 270) and that Mart in was notwearing his gloves at the time of the accident (Tr. 271).James L. Dolan, Complainant?s ComplianceOfficer, recommended the penalties for each alleged violation based on hisinvestigation made on June 25, 1974, four days after the accident (Tr. 99 and104). The gravity of the violation was the primary factor, and he assessed anunadjusted penalty of $1,000 for each. To this he then applied reduction of:10 percent for good faith5 percent for size, and20 percent for history\u00a0which resulted in final penalties of $650for each alleged violation (Tr. 104?106 and 126). These discounts are the mostallowable except for ?good faith? which could bring a 20 percent allowance.However, because the Respondent?s safety program, which he acknowledged wasenforced (Tr. 121), was not implemented on the day of the accident (Tr. 121,124?125), he allowed only a 10 percent reduction. Respondent?s safety programaffects the good faith factor (Tr. 124?125).The Parties? ProposedFindings of Fact, Conclusions of Law and Contentions on BriefAt the outset of the hearing, the partiesagreed that there is no question concerning the existence of the necessaryjurisdictional facts, namely, that Respondent is an employer having employeesand who affects commerce as that is contemplated by the Act (Complaint, para.I, Answer, para. II, and 29 U.S.C. ?? 652(3) and (5), Tr. 2).With reference of the alleged violation of29 C.F.R. ? 1926.950(b)(1) (requiring that existing conditions be determinedbefore work starts), Complainant points to the facts that neither lineman onJune 21, 1973, knew whether the primary lateral was energized and believed thatit was not. No check was made although it would have taken only a few minutes.With regard to the second allegedviolation [29 C.F.R. ?? 1926.950(c)(1), permitting an employee to approach aconductive object without insulation or guarding], Complainant supports thiswith two proposed findings: (1) the conductive objects approached carried 2400volts and between 115?230 volts at pole 30\/53 on June 21, 1973, andRespondent?s employee was allowed to come closer to the former than permittedby Table V?1 appended to the standard cited; and (2) that in making thisapproach, Respondent ?failed to assure? [Proposed finding (11)] that theemployee was insulated or guarded by gloves or had sleeved the energized parts.The two alleged violations taken together,resulted in the death by electrocution of Irenne Martin [Proposed findings(12)].As to both, Complainant argues that thefacts surrounding the alleged violations and Respondent?s history, size andgood faith support the individual penalties of $650 and that the abatementperiods to effect the cures are reasonable and sufficient.Complainant?s conclusion is that bothcitations should be affirmed in their entirety.Respondent contends that the questionpresented in this proceeding ? . . . is whether respondent has taken reasonableprecautions to prevent its employees from being exposed to the hazards soughtto be avoided.? (Respondent?s Brief, p. 20).In fashioning the answer to this,Respondent uses: (1) the employer?s instructions to its employees; (2) theirtraining; and (3) the skill of the journeyman lineman (Respondent?s Brief, p.20). Taking these three elements into account, Respondent contends that theactions of the employees should not be attributable to the employer(Respondent?s Brief, p. 30) and that it was proper for Respondent to rely uponthe experience and skills of the journeyman. Respondent did everything which aprudent man could be reasonably expected to be (Respondent?s Brief, p. 32).Regarding the first alleged violationdescribed as the failure to inspect existing conditions [29 C.F.R. ?1926.950(b)(1)], Respondent points to the facts that: the men, on June 21,1973, rode down Summer Street looking at the lines and poles; they saw the newlateral from Loring Road; while they were apparently unaware of the reason forits being there, the map of the work to be done showed that this line was onebeing installed as part of the area?s conversion; and since it was notnecessary to work on this line or to come closer to it than is allowed by therequired clearances, there was no need to check the line out further. In any event,as an unknown line, it should have been treated as hot which Martin failed todo. The fact is that Martin violated a well-established work rule which theemployer could not have reasonably foreseen (Respondent?s Brief, p. 31).As to the second alleged violationdescribed as Respondent?s failure to assure that employees are protected [29C.F.R. ? 1926.950(c)(1)], Respondent relies on the facts that: the employersupplied the rubber gloves; they were kept in the bucket and worn before thestart of any job; the rule requiring their use was enforced by Respondent, itsUnion, and Boston Edison and men have been suspended for violations; no onetestified that they saw Martin without them on; and that Martin?s actions,characterized as spontaneous, cannot become the Respondent?s responsibility(Respondent?s Brief, p. 29?30).Respondent attributes the accidentalelectrocution of Martin to his violation of at least four well-established workrules. He(1) Apparently failed to wear rubbergloves;?(2)Stepped out of the insulated bucket;(3) Grabbed hold of an unknown line; and(4) Stepped on a secondary (Respondent?sBrief, p. 32).Respondent concludes that it properlyrelied on the experience and skills of its men, that it did all it couldreasonably be expected to do, that this was the conclusion of Local 104, thatit was without fault, and the citations and penalties should be vacated.Findings of Fact,Discussion and ConclusionsOn the record as a whole including thedemeanor of those persons giving testimony, I find:(1) Based on Respondent?s Answer to theComplaint and agreement at the hearing, Utilities Line Construction Company,Inc., engages about 60 employees who regularly work with goods moved ininterstate commerce in its power-line transmission and distribution business;(2) On June 21, 1973, one of Respondent?sthree-man crews consisting of two journeymen linemen and a truck driver wasengaged in the stringing of a 3\/8? copperweld messenger cable along the poleson Summer Street, Weston, Massachusetts.(3) The activity was a part of thecontract with Boston Edison to convert the area and increase the capacity ofits power system from 4 kilovolts to 13.8 kilovolts and it was to be completed,or put in service, on November 1, 1973.(4) This crew was under the supervision ofa general foreman but the lead lineman of the crew, Anthony A. Waiswilos, Jr.,had no supervisory authority and could not in any way discipline or prevent amember of the crew from working.(5) On the morning of June 21, 1973, whileinspecting the poles on which the work was to be done, the linemen saw a lineon pole 30\/53 located at the intersection of Summer Street and Loring Roadwhich had not been there three weeks prior when these men had last been at thispole.(6) This line was an existing condition onpole 30\/53 on June 21, 1973.(7) Neither lineman knew the status ofthis line, whether it was energized or not, and the map, which they carried intheir vehicle but apparently did not refer to at that time, would not revealwhether on June 21, 1973, the line was energized.(8) Because of the appearance of the lineas a temporary wire, 10 or 12 feet coiled up and dead-ending in an aluminumshoe, the men thought this line was not energized, and no check to determinewhether the line was energized was made by the lineman although it would havetaken only a few minutes.(9) Under these circumstances, in theearly afternoon of that day, one of the linemen, Irenne Martin, went upalongside pole 30\/53 in a bucket from the truck to throw the messenger cableover the pole?s cross-arms, and his head came within a foot of the unknownline, that?very shortly thereafter?he stepped from the bucket onto a secondaryline carrying 110 volts and grabbed the unknown line and was electrocutedalmost immediately.(10) The unknown line is a primary lateraland carries 2400 volts of electricity, and it was not sleeved or covered with aprotective material on June 21, 1973.(11) His partner, Lineman Waiswilos, wason the ground and would have received the messenger after it was placed overthe pole?s cross-arms and attach it to the truck to be pulled to the next pole.(12) At the time Lineman Martin grabbedthe primary lateral, he was not wearing his rubber insulated gloves. For thisfinding, I rely on the circumstances testified to by the flagman, OfficerBentley, at the scene. Lineman Martin did not have the gloves on after he fellfrom the pole; they were not on the ground around him; Lineman Waiswilos?immediate impression, having seen Mr. Martin standing on the secondarytri-plex, was that the deceased had not been wearing his gloves and that hestepped out of the bucket without the gloves.(13) At the time of the accident, therewas no person with supervisory authority at pole 30\/53.(14) Respondent?s safety program appearsto be comprehensive, including the training and enforcement of the safetyrules, and in which the Union, in this case Local 104 of the InternationalBrotherhood of Electrical Workers, has an active role training and testing thelinemen and enforcing the safety rules.)(15) Lineman Martin, in approaching andtaking hold of an unknown line, violated two established work rules: he did sowithout his insulated gloves, and he treated an unknown line as de-energized.He also violated the known rules against stepping out of the bucket onto thesecondary tri-plex line.(16) Lineman Martin was known to hispartner to have stepped out of the bucket onto other lines on at least twoother occasions even though the exact times of these occurrences are unknown.(17) It is recognized that each lineman ona crew has a duty to watch over the other and has a responsibility to reportinfractions of the safety rules to his supervisor as testified to by LinemanWaiswilos and Local 104?s Business Manager and that this is required by thedanger inherent in the daily life of the journeyman.(18) There is no evidence that this dutyand responsibility are enforced either by the Respondent or the Union, but itis left to the linemen to decide what is going to be reported when they workwithout the direct supervision of a foreman.(19) The inference to be drawn from therequirement to watch over and report is that such a procedure is necessary toprevent the lineman from becoming lax in his approach and attitude toward hisjob.(20) Respondent, in charge of the entireconversion project, must have known of the existence of the primary lateral onpole 30\/53 on June 21, 1973, but gave no notice of its condition to itsemployees. Neither lineman knew that the primary lateral was energized and, infact, believed it not to be.(21) By requiring strict adherence by eachlineman to his responsibility to oversee the other and reportviolations?especially when they work unattended by a supervisor, or when thelinemen are performing a task which does not appear to warrant closesupervision?the Respondent could have known of the violations committed byLineman Martin.(22) The penalties proposed appropriatelyaccount for Respondent?s history, size and good faith and the gravity of thealleged violations.(23) No question is raised about theadequacy of the period to abate the alleged violations and that these should beabated immediately is reasonable.These findings lead me to conclude that theviolations and penalties must stand. Existing conditions?namely, the suddenappearance of the primary lateral?on pole 30\/53 on June 21, 1973, were notknown to the linemen despite the requirement of 29 C.F.R. ? 1926.950(b)(1). Itdoesn?t matter how close a man was to come to any wire on the pole, thestandard requires that he know that is there before he goes up.In this case, it is acknowledged thatneither man knew anything about the primary lateral at all. They had never seenit before, and their visual inspection told them nothing and they thought itwas dead. Respondent did not make them aware that it was live, and theschematic which they had was of no help. There is no evidence that Respondentimposed any requirement that the men check out all unknown lines beforebeginning the work.The common-sense rule to stay away fromunknown lines or test them with a pliers or the like is not compliance withthis standard which absolutely requires that all existing conditions be known.This is a positive duty imposed on any Respondent especially where the men maybe misled by the appearance of the line into thinking that it is dead. Becauseof the line?s looks, the men made no check on it, although the check would havetaken only a few minutes. Regardless of what happened on June 21, 1973, thestandard requires that(1) Existing conditions shall bedetermined before starting work, by an inspection or a test. Such conditionsshall include, but not be limited to, energized lines . . ..\u00a0That requirement was not met.With regard to the second violation, 29C.F.R. ? 1926.950(c)(1) requires thatNo employee shall be permitted to approachor take any conductive object without an approved insulating handle closer toexposed energized parts than shown in Table V?1,[18]unless?(1) the employee is insulated or guarded,(2) the energized part is insulated or guarded or (3) the employee is isolated,insulated or guarded from any other conductive object, as during live-line,bare-handed work.?Irenne Martin left all of his insulation,guarding and isolation behind when he stepped out of the bucket without hisrubber gloves and grabbed the 2400 volt line standing on another conductiveobject which was carrying 115 volts.The cited standard is versed in terms of?No employee shall be permitted . . . unless . . ..? The word permit is definedto include: liberty or leave; to allow; to suffer; or to tolerate, Gregoryv. Marks, 10 Fed. Cas. 1194, 1198.The lineman who violated the rules wasknown to his partner to treat the safety rules less than impeccably.Apparently, this was not made known to Respondent although each lineman has aduty to report any infraction of the rules. This duty which is, in itself, anacknowledged rule is not enforced either by Respondent or Local 104. Rather, itis left to the men to decide what to report.In this case, this crew was largely leftto its own, with no safety supervisor, performing a task admittedly requiringless than the Journeyman?s full skill and capacity. No member of that crew hadthe authority to stop the job on his own. It is just such a situation thatRespondent should have enforced the rule that the foreman?somewhere else in thearea?be notified when a safety rule is broken. But there is no evidence of sucha reporting requirement. Rather, Respondent appears to have acquiesced inallowing the linemen to run the job as they see fit. It relies on premise thatMartin?s acts constituted isolated incidences which it could not in any wayhave prevented.But if Respondent had been diligent in enforcingthe acknowledged rules (Respondent?s Brief, p. 10) that each man must overseethe other and report the violations, it would have known that a lineman hadstepped out of a bucket in violation of that rule and more than once.Thus, this is not a situation where anexperienced and capable man is off on his own and breaks a known, establishedand enforced rule with the employer completely unable to prevent the violation.cf., Secretary v. Clearwater Power Co., Docket No. 3458, 7 OSAHRC 707, Secretaryv. Hansen Brothers Logging, 1 OSAHRC 869, and Secretary v. L. E. MyersCo., Docket No. 2532 (on review on another issue). This lack of enforcement(1) allowed the practice to continue and (2) permitted the men, in thosecircumstances, to work without proper supervisory personnel which then led tothe violation charged.This is tantamount to a permission byRespondent allowing its employee to approach a conductive object closer thanshould have been and without the required safeguards.I conclude, then, that the Respondent issubject to the Act and did violate the standards cited and that the penaltiesand abatement periods set are reasonable. In reaching these conclusions, I haveconsidered the parties? proposed findings of fact and conclusions of law along withtheir detailed and well-written briefs. To the extent noted above, the findingsand conclusions are adopted; otherwise, they are rejected as not supported byfact or law.Order:It is ordered that the citations issued onJuly 16, 1973, to Utilities Line Construction Company, Inc., alleging seriousviolations of(1) 29 C.F.R. ? 1926.950(b)(1) togetherwith the proposed penalty of $650; and(2) 29 C.F.R. ? 1926.950(c)(1) togetherwith the proposed penalty of $650are affirmed.?DAVID J. KNIGHTJudge, OSHRCDated: January 20, 1975Boston, Massachusetts[1] This standard provides:Existing conditions shall be determinedbefore starting work, by an inspection or a test. Such conditions shallinclude, but not be limited to, energized lines and equipment, conditions ofpoles, and the location of circuits and equipment, including power andcommunication lines, CATV and fire alarm circuits.\u00a0[2] This standardprovides:(1) No employee shall be permitted toapproach or take any conductive object without an approved insulating handlecloser to exposed energized parts than shown in Table V?1, unless:(i) The employee is insulated or guardedfrom the energized part (gloves or gloves with a sleeves rated for the voltageinvolved shall be considered insulation of the employee from the energizedpart), or(ii) The energized part is insulated orguarded from him and any other conductive object at a different potential, or(iii) The employee is isolated, insulated,or guarded from any other conductive object(s), as during live-line bare-handwork.Table V?1, to which the standard refers,provides for a minimum distance of two feet when the voltage is 2.1 to 15kilovolts. Higher minimum distances are specified for higher voltages. Nominimum distance is provided when the voltage is less than 2.1 kilovolts.\u00a0[3] The secondary consisted of threeparallel wires loosely twisted together. It was used to supply electric powerto a private residence.[4] The union safety chairman testifiedthat it is not uncommon to accidentally step on lines when climbing or workingon poles.[5] Respondent argues that Complainantfailed to prove that it did not have a rule requiring a determination ofwhether lines were energized. The argument is misplaced. The burden of showingthat it had and enforced a rule aimed at achieving compliance with the standardlies with the Respondent. B-G Maintenance Management, Inc., supra. Inany event, the record shows that Martin and Waiswilos either were not aware ofany such rule or felt free to ignore it. Thus, even if Respondent had such arule, it was not adequately communicated to employees.\u00a0[6] Had he remainedin the bucket, Martin might still have contacted the primary lateral. Thiswould not, however, have been a violation of the standard. The standard explicitlypermits contact with energized parts if the employee is adequately insulatedfrom other conductive objects. The record shows that the bucket would haveprovided such insulation.[7] We do, however,have serious reservations concerning the Judge?s conclusion that Respondentshould have enforced a rule requiring crew members to inform it of safetyinfractions committed by other members. Certainly, for a safety program to beadequate, an employer must have some means of discovering violations committedby employees. See Ocean Electric Co., Docket No. 5811, BNA 3 OSHC 1705,CCH OSHD para. 20,167 (1975). The record reveals, however, that Respondent didnot rely solely on information supplied by other crew members, but also thateach crew was frequently checked by supervisory personnel. Considering that thecrew members were relatively skilled and experienced, this degree ofsupervision appears adequate. See Horne Plumbing and Heating Co. v. OSHRC,528 F.2d 564 (5th Cir., Feb. 26, 1976); Brennan v. OSHRC, (Hanovia Lamp Div.),502 F.2d 946 (3rd Cir. 1974).[8] Dunlop v.Rockwell International, No. 75?1672 (6th Cir., August 26, 1976); HornePlumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennanv. OSAHRC and Raymond Hendrix, d\/b\/a Alsea Lumber Company, 511 F.2d 1139(9th Cir. 1976).\u00a0[9] Secretary v.Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973).\u00a0[10] See Dunlop v.Rockwell International, supra.\u00a0[11] As the 9thCircuit pointed out in Hendrix, supra ?. . . the Secretary has at least theinitial burden of establishing a prima facie case of employer knowledge beforethe burden of going forward shifts to the employer.?\u00a0[12] A review of thereferenced transcript page reveals the following dialogue between complainant?scounsel and employee Waiswilos:Q. Who normally checks to seewhether the line was energized?A. We would, [Martin] and I.? (Emphasisadded.)[13] The citation wasissued under 29 U.S.C. ? 658(a) and Respondent?s notice of contest was filedpursuant to 29 U.S.C. ? 659(a).[14] 29 C.F.R. ? 1926.950(b)(1) reads:(b) Initial inspections, tests, ordeterminations(1) Existing conditions shall bedetermined before starting work, by an inspection or a test. Such conditionsshall include, but not be limited to, energized lines and equipment, conditionsof poles, and the location of circuits and equipment, including power andcommunication lines, CATV and fire alarm circuits.\u00a0[15] 29 C.F.R. ?1926.950(c)(1) reads:(c) ClearancesThe provisions of subparagraph (1) or (2)of this paragraph shall be observed.(1) No employee shall be permitted toapproach or take any conductive object without an approved insulating handlecloser to exposed energized parts than shown in Table V?1, unless:(i) The employee is insulated or guardedfrom the energized part (gloves or gloves with sleeves rated for the voltageinvolved shall be considered insulation of the employee from the energizedpart), or(ii) The energized part is insulated orguarded from him and any other conductive object at a different potential, or(iii) The employee is isolated, insulated,or guarded from any other conductive object(s), as during live-line bare-handwork.Table V?1 requires a minimum distance of 2feet when the voltage range is between 2.1 and 15 kilovolts.\u00a0[16] Although Respondent?s employee andthe Business Manager of the employees? Union testified at the hearing.[17] Although, as previously noted,Anthony Waiswilos had been in the bucket that morning[18] Table V?1 requires a minimumdistance of 2 feet when the voltage range is between 2.1 to 15 kilovolts.”