Marcus Cable Associates, L.L.C.

Plain-English summary

A cable technician fell to his death from an elevated bucket while his issued harness remained in the truck. The judge found that Marcus Cable had communicated a rule requiring fall protection but failed to certify employee training, an other-than-serious violation with a $500 penalty. The company also knew or should have known that technicians routinely ignored the harness rule because supervisors conducted virtually no unannounced field inspections. That serious failure to ensure use of protective equipment was affirmed with a $4,500 penalty, and the employee-misconduct defense failed for lack of effective enforcement.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.268(c) and 1910.268(e)
• Outcome: Both items were affirmed and total penalties of $5,000 were assessed.
• Key point: A communicated safety rule does not establish effective enforcement when employees routinely violate it and supervisors rarely make unannounced observations.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                           v.                                OSHRC DOCKET NO. 02-0966

MARCUS CABLE ASSOCIATES, L.L.C.,
Resp ondent.

APPEARANCES:

      For the Co mpla inant:
               Chris Grier, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

      For the Re spondent:
               David B. Jones, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Atlanta, Geo rgia

Before: Administrative Law Judge: Benjamin R. Loye

                                          DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
At all times relevant to this action Marcus Cable Associates, L.L.C. (Marcus) maintained a place
of business in Burleson, Texas, where it was engaged in providing and maintaining cable service. Marcus
admits it is an employer engaged in a business affecting commerce and is subject to the requirements of
the Act. Marcus is a subsidiary of Charter Cable Operating Company, L.L.C., which is owned by Charter
Communications Operating, L.L.C. , which is, in turn, held by Charter Communications Holding
Company, L.L.C. (Tr. Vol. II, p. 10; Exh. R-19). The citation and complaint in this matter were originally
issued to Charter Communications, Inc. (Charter). At the hearing, Marcus introduced testimony showing,
inter alia, that Charter owns less than 50 percent of the holding company that owns Marcus (Tr. Vol. II,
p. 9). As a result, the Secretary and Marcus entered into a stipulation identifying Marcus as the employer
of the affected employees in this case, and requesting the substitution of Marcus Cable Associates, L.L.C.
as the Respondent in this action. The parties’ request to amend the caption in this matter is GRANTED,
and will be reflected in this Decision and Order and in any further pleadings.
On April 5, 2002 Jurica Miskovic, fell to his death from the bucket of a Ford F-450 bucket truck.
Following the fatality, the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Miskovic’s working conditions. As a result of that inspection, citations were issued to
Miskovic’s employer, now identified as Respondent Marcus Cable Associates, L.L.C. The citation alleges
violations of the Act together with proposed penalties. By filing a timely notice of contest, Respondent
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).

    On November 14-15, 2002, a hearing was held in Dallas, Texas. The parties have submitted briefs

on the issues and this matter is ready for disposition.
Facts
Aaron Villareal, a system technician with Marcus (Tr. Vol. I, p. 22), testified that he had lunch with
Jurica Miskovic on April 5, 2002 (Tr. Vol. I, p. 24). Because Mr. Miskovic was finished with his calls for
that day, he volunteered to help Villareal with the remainder of his repairs (Tr. Vol. I, p. 24). Villareal
stated that Miskovic raised the bucket of his truck about 18 feet above the ground to work on an elevated
cable (Tr. Vol. I, p. 25). Miskovic had been issued a full body harness and lanyard, but was not wearing
them (Tr. Vol. I, p. 26). Villareal testified that Miskovic was a grown man, and made his own decisions.
Villareal would not have presumed to tell him to wear his fall protection (Tr. Vol. I, pp. 51-52). Villareal
turned away to stow a test line for Miskovic; when he turned around he saw Miskovic fall from the basket
to the ground (Tr. Vol. I, pp. 26-27). Miskovic’s harness was found in the tool bin of his truck after the
accident (Tr. Vol. I, p. 53).
Villareal testified that when he was promoted to system technician, he received on-the-job training
from more experienced technicians (Tr. Vol. I, p. 35). Villareal rode along on service calls, and observed
the other technicians (Tr.Vol. I, pp. 35-36). Kenneth Trujillo, a system technician with Marcus
Communications from October 2000 to August 2002 (Tr. Vol. I, p. 63), also testified that his training
consisted solely of on-the-job training received during ride-alongs (Tr. Vol. I, pp. 75-76). Trujillo stated
that the training he received covered splicing cable, balancing cable amplifiers, etc. He did not receive
training in the safe operation of a bucket truck (Tr. Vol. I, p. 76). Villareal testified similarly, but stated
that he was able to operate the truck without difficulty without the benefit of any formal training (Tr. Vol.
I, pp. 35-36, 38). He stated that the hazards associated with operating a bucket truck, i.e., energized
overhead lines and fall hazards were common knowledge among service technicians (Tr. Vol. I, p. 39).
Though the danger of falling was well recognized, Villareal testified, full-body harnesses and safety
lanyards were not provided to system techs until a fiber line was cut at the office, and Jerome Butler, a
technical supervisor, observed all the techs working without appropriate fall protection (Tr. Vol. I, pp. 40,
44). After that incident, harnesses and bungee straps were issued to the techs (Tr. Vol. I, p. 40). Villareal
could not recall the date harnesses were issued; however, Kenneth Trujillo testified that he received his
harness approximately three months prior to Miskovic’s accident (Tr. Vol. I, p. 67). Trujillo stated that
up until that time he had to use his safety belt, which is used for climbing ladders and poles, while working

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from his bucket (Tr. Vol. I, pp. 65-68). Trujillo stated that he repeatedly asked his supervisor, Duane
Moment, for a harness, but was told that they were out of stock (Tr. Vol. I, p. 66).
Both Villareal and Trujillo testified that, after receiving harnesses, they were admonished at each
regular Wednesday safety meeting to wear the fall protection (Tr. Vol. I, pp. 45-46, 68). Trujillo,
however, testified that they were never shown how to use or inspect the body harness or body belt and strap
(Tr. Vol.1, pp. 67-68). Moreover, both Villareal and Trujillo agreed that the technicians rarely wore fall
protection prior to Miskovic’s accident (Tr. Vol. I, pp. 50, 69, 71). According to both techs, it took longer
to put on the harness than it did to complete most jobs, so the technicians did not bother to put on the
harnesses and lanyards unless they were worried about being caught without them (Tr. Vol. I, pp. 51, 70-
71).
John Vallejo, who worked as a line technician for Marcus until May or June of 2002, used a bucket
truck to work on the main cable lines (Tr. Vol. I, p. 84-85). Vallejo stated that a body harness and lanyard
were issued to his truck, but that he was never trained to inspect or to use them (Tr. Vol. I, pp. 88-89).
Vallejo never used the body harness, which remained wadded up in his truck the entire time he worked for
Marcus (Tr. Vol. I, pp. 89-90). Nor did Vallejo ever see the other technicians using body harnesses. He
testified that there was not enough time for the techs to complete their routes if they took time out to put
on the fall protection (Tr. Vol. I, p. 92).
Tony Shaw worked as a line maintenance technician for Marcus until January 2000 (Tr. Vol. I, p.
99). Shaw testified that a body harness and lanyard were issued with his 2000 F-450 Ford bucket truck
(Tr. Vol. I, pp.102-03). Though Shaw was not trained in the use of the body harness and lanyard, he
understood that he was supposed to use them every time he went up in the bucket (Tr. Vol. I, p. 104).1
Shaw testified that he wore the fall protection 95% of the time, but that on 5% of his calls, he was in too
much of a hurry to get his work done to spend the time it took to don the equipment (Tr. Vol. I, p. 104).
Shaw had, on occasion, seen other technicians working from aerial lifts without fall protection (Tr. Vol.
I, p. 106).
Trujillo testified that no supervisory personnel ever saw him working without fall protection,
because none ever came out to his job site (Tr. Vol. I, p. 70, 72). Villareal stated that Ervin Adams was
the only supervisor to perform spot checks in the field (Tr. Vol. I, p. 29, 49). To his knowledge, Adams
never saw him working from his bucket without his harness and lanyard on (Tr. Vol. I, p. 49). Mr. Vallejo,

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           Resp ondent introduced an emp loyee sa fety orientation sheet initialed by Shaw (T r. Vo l. I, p. 106-08 ).

Shaw testified, ho wever, that his sup ervisor had him initial the form w ithout ac tually pro viding him with any safety
training (Tr. Vol. I, p. 112).

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however, was disciplined on February 21, 2002 after Ervin Adams saw him on a ladder without a safety
strap or a hard hat (Tr. Vol. I, p. 94-96; Exh. R-12).
Ervin Adams, who was, during the relevant period, the system technical manager at Marcus (Tr.
Vol. I, p.194), confirmed that technicians received mainly on-the-job training (Tr. Vol. I, p.195). More
experienced technicians would show the apprentice techs how to perform whatever function was called
for on a particular job (Tr. Vol .I, p. 195). Adams testified that the purpose of the regular Wednesday
morning meetings was actually to discuss general concerns. The safety portion of the meetings was
“thrown in” at the end of the meeting. Safety concerns, such as bee stings, might be discussed (Tr. Vol.
I, p. 196). According to Adams, Marcus’ safety policy required that all employees be tied off when
working from a bucket (Tr. Vol. I, pp. 200, 207). Adams did not know whether employees were actually
provided with a written copy of the policy (Tr. Vol. I, p. 208). The policy was supposed to be
communicated to employees during on-the-job training, and in meetings (Tr. Vol. I, pp. 200, 208). Adams
did not go to safety meetings himself, however. According to Adams, that was the supervisors’ job (Tr.
Vol. I, p. 202). Adams testified that he did check up on the technicians in the field, but stated that the
purpose of his visits was not to check on safety (Tr. Vol. I, p. 196). Adams did occasionally stop to ask
a technician to put cones out behind his truck, and Adams recalled observing Manuel Vallejo working
without fall protection on February 21, 2002, which led to the disciplinary action against Mr. Vallejo (Tr.
Vol. I, pp. 197-98).
Duane Moment, Miskovic’s supervisor (Tr. Vol. I, p. 212), could not recall who provided Miskovic
with his on-the-job training (Tr. Vol. I, p. 213). Apprentice techs were assigned to whichever more
experienced technician was working during that shift (Tr. Vol. I, p. 213). According to Moment,
Miskovic’s training may or may not have included the proper use of a bucket truck, depending on what
jobs he rode along on. If the work to be done was underground work, use of the bucket would not have
come up (Tr. Vol. I, p. 213). Moment testified that the he only went out into the field when one of his
technicians would call for support (Tr. Vol. I, p. 215). Because the technician knew when Moment was
coming, he would always be wearing the appropriate personal gear, including fall protection (Tr. Vol. I,
p. 215). Moment was not familiar with Marcus’ safety handbook, or with any specific safety rule requiring
that safety belts be attached to the designated attachment point of the boom whenever an employee was
working aloft from aerial equipment (Tr. Vol. I, pp. 223-24). Moment did attest that Manuel Vallejo’s
disciplinary action was discussed in the February 27, 2002 Wednesday morning meeting (Tr. Vol. I, p. 222;
Exh. R-4; see also, testimony of Ralph Varnado, Tr. Vol. I, pp. 255, 261). The sign in sheet for that
meeting indicates that Jurica Miskovic was in attendance (Exh. R-4, p. 2).

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Ralph Varnado, a supervisor at Marcus (Tr. Vol. I, p. 249), testified regarding an e-mail he received
on Wednesday, March 27, 2002 (Tr. Vol. I, p. 251; Exh. R-3). The e-mail consisted of a memo regarding
a Charter Communication employee who was observed by a MIOSHA inspector. The employee was
working from a boom bucket without a harness or lanyard. The employee had an “Aerial Platform Permit,”
and “[s]hould have known” better (Exh. R-3). The memo suggested that “you get a strong message out
to you employees, safety meetings, additional safety training (if necessary) and Technical Supervisors QC
safety visits to the employees in the field (sic).” (Exh. R-3). According to Varnado, the e-mail was posted
in the meeting area at Marcus (Tr. Vol. I, p. 252). Varnado testified that the e-mail was discussed at the
following April 3, 2002 Wednesday morning meeting (Tr. Vol. I, pp. 253, 260, 262). Jurika Miskovic’s
signature appears on the sign in sheet for the April 3, 2002 meeting (Tr. Vol. I, p. 253; Exh. R-3, p. 3).
Mr. Varnado testified that he made trips into the field twice a week specifically to ensure that the
men under his supervision were following safe work practices (Tr. Vol. I, p. 257). His men were generally
aware that when he would be coming, and he never found any of them working without full-body harness
and lanyard (Tr. Vol. I, pp. 257-59).
Technical supervisor Darrell Grubbs testified that he tried to get into the field approximately once
a week to make sure his crew was working safely, or to offer them additional instruction (Tr. Vol. I, pp.
181-82). According to Grubbs, his men did not always know he would be coming (Tr. Vol. I, p. 182).
Grubbs stated that he never observed any safety violations serious enough to warrant disciplinary action
(Tr. Vol. I, p. 182).
Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 1910.268(c):
a) At the jobsite; Employees have not been certified to operate the bucket on the Ford F-450, model
AT200A, serial number 0300BV6056, exposing employees to the hazard of falling out of the
bucket to death.

    The cited standard provides:

    Training. Employers shall provide training in the various precautions and safe practices
    described in this section and shall insure that employees do not engage in the activities to
    which this section applies until such employees have received proper training in the various
    precautions and safe practices required by this section. . . . Where training is required, it
    shall consist of on-the-job training or classroom type training or a combination of both.
    The employer shall certify that employees have been trained by preparing a certification
    record which includes the identity of the person trained, the signature of the employer or
    the person who conducted the training, and the date the training was completed. The


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certification record shall be prepared at the completion of training and shall be maintained
on file for the duration of the employee’s employment. . . .

Discussion
Respondent admits that employees were not certified to operate the bucket of the Ford F-450 (Tr.
Vol. I, pp. 15-16). Respondent stipulates that the only questions to be litigated are: 1) whether the
violation was properly classified as “serious,” and 2) whether the proposed penalty of $4,500.00 is
appropriate (Tr. Vol. I, p. 16). Respondent argues that the mere failure to certify that an employee has been
trained, where that employee actually received training, cannot, in itself, result in serious injury or death.

    The citation at issue charges Respondent with failure to comply with the training requirements at

§1910.268(c), as set forth above. The cited section requires that employees be trained in safe practices
applicable to the telecommunications industry. The citation specifically refers to precautions necessary
to prevent an employee from falling from the elevated bucket of the Ford F-450 bucket truck. It is clear
from the evidence adduced at the hearing that Respondent’s failure to produce any records certifying that
Mr. Miskovic received any training initially led to Marcus’ citation under §1910.268. Based on the
evidence adduced at the hearing, however, it is clear that Complainant intended to charge Marcus with
failing to adequately train its employees to use fall protection, as is required under the cited section. The
issue of whether Jurica Miskovic was adequately trained to use a harness and lanyard when working from
the bucket truck was also fully addressed by Respondent. As the training issue was fully tried by the
parties, it is properly before this judge.
The evidence shows that Marcus provided on-the-job training to new system techs, having them
work with more experienced technicians. None of the testimony, however, establishes that training in fall
protection was included in that training. It is clear from the record that safety training was not the main
focus when new technicians rode along with more experienced techs. The main purpose of every trip out
was to accomplish the work assigned to the experienced technician. Any training the apprentice technician
received was incidental to the specific job to be performed. Thus a new technician might, or might not
receive instruction on the use of fall protection, depending on the nature of the jobs he rode along on.
Nonetheless, the record establishes that Marcus did have a safety policy requiring the use of
harnesses and lanyards while working from a bucket, and that the policy was communicated to employees
at regular Wednesday morning meetings. Jurica Miskovic was present for at least two meetings where the
use of fall protection was discussed. Though uniformly eschewing the rule, the testifying employees were
aware of its existence. The Commission has recently held that an employer’s failure to enforce compliance

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with work rules on the job does not establish a failure to train. N & N Contractors, Inc. 18 BNA OSHC
2121, 2000 CCH OSHD ¶32,101 (No. 96-0606, 2000). In this case, the record does not establish that
Marcus failed to provide the training required under §1910.268(c), only that Marcus failed to effectively
enforce that training. Nonetheless, as Marcus admits, Marcus was in technical violation of §1910.268 in
that it failed to certify each employee’s training.
Penalty
This judge agrees that a failure to certify training that was, in fact, received by employees, is not
likely to result in either serious injury or death. The citation, therefore, will be affirmed as an “other than
serious” violation. It is well established that in determining an appropriate penalty, the gravity of the
offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC 1001, 1972 CCH
OSHD ¶15,032 (No. 4, 1972). Because there is little probability that the proven violation would result in
injury to employees, a penalty of $500.00 is deemed appropriate, and is assessed.
Serious citation 1, item 2 alleges:
29 CFR 1910.268(e):
a) At the jobsite; Employer did not ensure that employees are wearing safety harnesses whenever
inside the bucket of the Ford F-450, model AT200A, serial number 0300BV6056, exposing
employees to the hazard of falling out of the bucket to death.

    The cited standard provides:

    Tools and personal protective equipment. Personal protective equipment, protective
    devices and special tools needed for the work of employees shall be provided and the
    employer shall ensure that they are used by employees. . . .

Facts
Respondent admits that the cited standard applies, that it was violated, and that Mr. Miskovic was
exposed to the hazard. Marcus denies, however, that it had knowledge of the violation. Marcus further
raises the affirmative defense of unpreventable employee misconduct (Tr. Vol. I, p. 16-17).
Discussion
Knowledge. In order to show employer knowledge of a violation the Secretary must show that the
employer knew, or with the exercise of reasonable diligence, could have known of a hazardous condition.
Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994); Dun Par Engd. Form Co., 12 BNA
OSHC 1962, 1986-87 CCH OSHD ¶27,651 (No. 82-928, 1986). Constructive knowledge may be
predicated on an employer's failure to establish an adequate program to promote compliance with safety
standards. New York State Elec. & Gas Corp. 88 F.3d 98, (2nd Cir. 1996). The fact that [the employer]

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may not have known of the specific instance of violative conduct at the time it occurred does not mean that
that conduct was unpreventable. Ormet Corp., 14 BNA OSHC 2134, 2138-39, 1991-93 CCH OSHD
¶29,254, p. 39,203 (No. 85-531, 1991). Reasonable diligence includes adequate supervision of employees
as well as the formulation and implementation of work rules and training programs designed to ensure that
employees perform their work safely. See; Mosser Construction Co., 15 BNA OSHC 1408, 1991-93 CCH
OSHD ¶29,546 (No. 89-1027, 1991); Gary Concrete Prod., Inc., 15 BNA OSHC 1051, 1991-93 CCH
OSHD ¶29,344 (No. 86-1087, 1991). It is clear that Marcus’ safety program was not designed to ensure
that its employees utilized fall protection unless a supervisor would actually be watching. Rather the
evidence establishes that Marcus’ fall protection program was uniformly ignored by its employees, unless,
a technician knew that a supervisor would be at his work site. Unanimity of noncomplying conduct by
all employees strongly suggests ineffective enforcement Gem Industrial, Inc. 17 BNA OSHC 1861, 1865,
1996 CCH OSHD ¶31,197 (No. 93-1122, 1996). Marcus could easily have instituted measures designed
to discover violations of the fall protection rules, such as requiring supervisory personnel to conduct
regular surprise inspections of technicians performing aerial work See, Pride Oil Well Serv., 15 BNA
OSHC 1809, 1991-93 CCH OSHD ¶29,807 (No. 87-692, 1992). Supervisors made virtually no
unannounced inspections, and, consequently Marcus remained unaware that employees eschewed the use
of fall protection. The Secretary has established that Marcus’ constructive knowledge.
Employee Misconduct. To prove that a violative condition resulted from unpreventable employee
misconduct, the employer must show that it had a work rule that effectively implemented the requirements
of the cited standard and that the work rule was adequately communicated and effectively enforced. Gary
Concrete Prods., 15 BNA OSHC 1051, 1055, 1991-93 CCH OSHD ¶29,344, p. 39,452 (No. 86-1087,
1991). The defense fails here for the same reason that Marcus was found to have constructive knowledge
of the violation. See, Danis Shook, 19 BNA OSHC 1497, 2001 CCH OSHD ¶32,397 (No. 98-1192, 2001).
Marcus had a work rule, but it did little to implement or enforce the rule. Therefore, the defense fails.
Penalty
Respondent stipulates that, should a violation be found, the classification and proposed penalty are
appropriate (Tr. Vol. I, p. 17). The proposed penalty of $4,500.00 is, therefore, affirmed.

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ORDER

1. Citation 1, item 1, alleging violation of 29 CFR §1910.268(c) is AFFIRMED as an “other than
   serious” violation and a penalty of $500.00 is ASSESSED.
2. Citation 1, item 2, alleging violation of 29 CFR §1910.268(e) is AFFIRMED as a serious violation
   and a penalty of $4,500.00 is ASSESSED

                                                /s/
                                                Benjamin R. Loye
                                                Judge, OSHRC
   

Dated: March 10, 2003

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