Westar Energy

Plain-English summary

A Westar Energy apprentice was electrocuted after entering the minimum approach distance of an energized transformer compartment without the required high-voltage rubber gloves. The company did not dispute the unsafe condition or that the foreman was present, but asserted unpreventable employee misconduct. On the stipulated record, the judge found that Westar had clear written rules, extensive training for both employees, frequent jobsite audits that found no prior infractions, and a progressive discipline system. The foreman's failure to require the gloves was an isolated departure, and Westar suspended him for 15 days after the incident. The amended citation was vacated and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.333(a)(1)(i), 1910.333(c)(2), and 1910.269(l)(2)
• Outcome: Two original items were withdrawn, and the amended minimum-approach-distance item was vacated under the misconduct defense.
• Key point: Even supervisory misconduct may be unpreventable when clear rules, extensive training, effective monitoring, and consistently enforced progressive discipline are established.

Full text (OSHRC public release)

Secretary of Labor,
      Complainant,
      v.                                                       OSHRC Docket No. 03-0752
Westar Energy,
      Respondent.

Attorneys of Record:

      Kim Flores, Esquire                                      R. Lance Witcher, Esquire
         Office of the Solicitor                                   Blackwell, Sanders, Peper & Martin, LLP
         U. S. Department of Labor                                 St. Louis, Missouri
         Kansas City, Missouri                                         For Respondent
             For Complainant



                                  DECISION AND ORDER

      Westar Energy Inc. (Westar), with offices in Topeka, Kansas, is engaged in the business of

electrical power transmission and distribution. On December 4, 2002, an apprentice cable splicer
was electrocuted when the apprentice and his foreman were preparing to repair a lightning arrester
inside a transformer’s primary compartment at a shopping mall in Wichita, Kansas. As a result of
the fatality, the Occupational Safety and Health Administration (OSHA) investigated the accident
and issued a serious citation on March 14, 2003.
The serious citation, as amended,1 alleges that Westar violated 29 C.F.R. § 1910.269(l)(2)
when the apprentice was working within the minimum approach distance to live 7,200 volts AC
without wearing electrically safe personal protective equipment. The citation proposes a penalty of
$5,000.

1
The citation also alleged violations of 29 C.F.R. § 1910.333(a)(1)(i) (item 1) and 29 C.F.R. § 1910.333(c)(2)
(item 2), which were withdrawn by the Secretary. In her complaint, the Secretary amended an alleged violation of 29
C.F.R. § 1910 .335(a)(1)(i) (item 3) to allege a serious violation of 29 C.F.R. § 1910.26 9(l)(2).
 Westar denies that it violated § 1910.269(l)(2) and asserts unpreventable employee
misconduct. Westar argues that the cable splicer apprentice and foreman failed to comply with its
safety rules which Westar communicated to employees, monitored for compliance and enforced
through discipline.
The parties waived a hearing and submitted the case on a stipulated record pursuant to
Commission Rule 61, 29 C.F.R. § 220.61. The parties’ stipulated record consists of a joint statement
of uncontroverted material facts (Exh. 1); Westar’s motion for summary judgment (Exh. 2); Westar’s
motion for reconsideration (Exh. 3); Westar’s internal accident investigation report (Exh. 4); affidavit
of Westar’s director of work force coordination, James Wishart (Exh. 5); affidavit of foreman Cory
Saylor (Exh. 6); Westar’s Energy Customer Operations Safety Manual (Exh. 7); signed
acknowledgments of the safety manual (Exh. 8); standards of apprenticeship (Exh. 9); training records
of apprentice Terry Palmer (Exh. 10); work records of apprentice Terry Palmer (Exh. 11); training
records of foreman Cory Saylor (Exh. 12); affidavit of Westar’s manager of electric distribution,
Raymond Lara, with safety assessments (Exh. 13); apprentice evaluations of Terry Palmer (Exh. 14);
affidavit of Westar’s executive director of human resources, Steve Long, with corrective action report
(Exh. 15); corrective action notice for foreman Cory Saylor (Exh. 16); and an affidavit of Westar’s
director of electric distribution, Thomas M. Bowman, with expectations for the Wichita manager (Exh.
17). Based on the stipulated record, the parties filed briefs.
Jurisdiction and coverage are stipulated (Exh. 1). For the reasons discussed, Westar’s
unpreventable employee misconduct is established and the citation for a violation of § 1910.269(l)(2)
is vacated.
The Accident
The parties stipulate that Westar’s investigation report (Exh. 4), Westar’s memorandum in
support of motion for summary judgment (Exh. 2), the affidavit of Jim Wishart (Exh. 5), and the
affidavit of Cory Saylor (Exh. 6) comprise an accurate description of the accident.
Westar is in the business of power distribution. Its principal office is located in Topeka, Kansas.
Westar employs 1,800 employees.

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On December 3, 2002, Westar assigned a crew to work early the next morning on a scheduled
outage for an expansion project at the Town West Shopping Mall in Wichita, Kansas. The job involved
de-energizing the secondary compartment on a pad mount transformer adjacent to the expansion project.
With the secondary compartment de-energized, five of the six secondary cables on each phase would
be removed to begin the transfer of this load to a new pad mount transformer located approximately
200 feet to the west. The existing transformer was to be removed within a few weeks. This job was part
of Westar’s initial work on the project.
The Westar crew assigned the initial job consisted of cable foreman Cory Saylor, journeyman
cable splicer Eric Schwaiger, and apprentice cable splicer Terry Palmer.2 The crew arrived on the mall
site at approximately 5:00 a.m. on December 4, 2002. It was snowing with 3 inches of accumulation
on the ground and a 20-degree temperature.
After arriving on site, the crew held a tailgate meeting to discuss the job and obtain a hot work
permit for the outage work planned on the transformer. The permit allowed the crew to work on
electrical circuits without locking out the energy source.
The secondary compartment at the transformer was de-energized by use of the secondary
disconnect switch located in the upper left area of the primary side compartment. Apprentice Palmer
de-energized the secondary compartment. He was wearing a switching jacket, hood flame retardant
shirt, 20 kv (Class II) rubber gloves, and used a non-conductive switching stick (hot stick).
After de-energizing the secondary compartment, the crew opened the primary compartment and
observed that the lightning arrester on the right outside lead was blown. The arrester had parted between
the metal cap and porcelain body with the cap remaining attached to the pigtail wire. The arrester cap
was several inches to the side, with its edge approximately 1½ inches away from the grounded steel
partition dividing the primary and secondary compartments. The crew decided to wait until the
secondary work was completed before repairing the lightning arrester. The primary compartment was
closed to prevent inadvertent contact with the energized primary side. Then, each phase on the
secondary side was tested to verify no voltage was present and the crew began removing five of six

2
Palmer had almost completed his second year of apprenticeship.

                                                      -3-

conductors on each phase. The crew’s removal work was completed on the secondary side by
approximately 5:50 a.m.
Upon completion, a commercial waste hauler notified the crew that their truck was blocking
access to a dumpster. Journeyman Eric Schwaiger left the job to move the truck.
While Schwaiger was gone, foreman Saylor and apprentice Palmer decided to repair the lightning
arrester. Apprentice Palmer opened the primary compartment door and they discussed how to repair the
arrester. Since the transformer would be moved within several weeks, foreman Saylor decided against
replacing the arrester and advised Palmer that only the loose arrester cap needed to be moved away from
the partition wall to provide more clearance.
Apprentice Palmer was still wearing a switching jacket and his leather work gloves with jersey
liners. His 20 kv (Class II) rubber gloves utilized in the initial switching operation were in a protective
bag on the concrete pad toward the left side of the primary compartment door. Palmer had removed his
rubber gloves after de-energizing the secondary compartment and closing the door to the primary
compartment. The switching stick was leaning against the barrier fence a few feet behind Saylor.
As their discussion continued, Saylor turned to get the switching stick and Palmer gestured or
pointed with his left hand toward the primary compartment as he was turning toward the transformer.
At this point, a flash was observed from the primary compartment when Palmer’s hand probably
contacted 7,200 volts from the primary circuit. An ambulance was called and emergency assistance was
rendered. Palmer was transported to a hospital where he died as a result of the electrical shock.
Westar’s internal investigation into the accident determined that apprentice Palmer had made
probable contact with the energized lightning arrester cap as he gestured into the primary compartment.
It was also found that when the problem with the lightning arrester was discovered, the crew understood
that the primary side equipment was still energized. When the primary door was opened, the report
noted that the apprentice “was very close to the open live front primary compartment” and “when the
employee turned and gestured toward the equipment in the primary compartment, his left hand entered
the primary compartment well inside the required minimum approach distance exceeding the personal
protective equipment being worn by the employee at that time” (Exh. 4). Westar’s internal investigation
concluded that the pre-job briefing between Saylor and Palmer prior to repairing the lightning arrester
should have been held prior to opening the primary door or away from the energized primary to prevent

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inadvertent contact. Also, when the primary compartment was opened to repair the lightning arrester,
Palmer should have been wearing his 20 kv (Class II) rubber gloves or Saylor as foreman, should have
instructed Palmer to step away from the transformer, close the door to the primary side or put on his
Class II rubber gloves to avoid inadvertent contact. As a result of the accident, Saylor received a 15-day
suspension on January 10, 2003 (Exh. 16).
Based on OSHA’s inspection into the accident, Westar received a serious citation issued
March 14, 2003.
Discussion
The Secretary has the burden of proving a violation.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability of
the cited standard, (b) the employer’s noncompliance with the standard’s
terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation (i.e., the
employer either knew or, with the exercise of reasonable diligence could
have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Alleged Violation of §1910.269(l)(2)
The citation, as amended, alleges that Westar violated § 1910.269(l)(2) in that an employee was
permitted to work within the minimum safe distance without adequate personal protective equipment
(PPE), including appropriate rubber gloves. Section 1910.269(l)(2) provides:
The employer shall ensure that no employee approaches or takes any
conductive object closer to exposed energized parts than set forth in
Table R-6 through Table R-10, unless

           (i) The employee is insulated from the energized part (insulating gloves
           or insulating gloves and sleeves worn in accordance with paragraph (l)(3)
           of this section are considered insulation of the employee only with regard
           to the energized part upon which work is being performed), or

           (ii) The energized part is insulated from the employee and from any other
           conductive object at a different potential, or

           (iii) The employee is insulated from any other exposed conductive object,
           as during live-line bare-hand work.


                                               -5-

Westar agrees that the § 1910.269 “electric power transmission and distribution” standards apply
to the work being performed by the crew on December 4, 2002 (Exhs. 1 & 2, fn. 1). Also, the parties
stipulate that apprentice Palmer was not in compliance with the requirements of § 1926.269(l)(2)
because when the primary compartment door was opened, he was within the minimum approach distance
to an energized circuit and he was not wearing 20 kv (Class II) rubber gloves. The parties also agree that
the primary circuit was energized with 7,200 volts and that the minimum approach distance was 2 feet
1 inch for phase-to-ground exposure and 2 feet 2 inches for phase-to-phase exposure (Exh. 2). There
is no dispute that 20 kv (Class II) rubber gloves were required PPE in this case to comply with the
requirements of § 1910.269(l)(2), and Palmer was not wearing such gloves at the time of the accident.
Therefore, the application of § 1910.269(l)(2) to the work, Palmer’s noncompliance with its
requirements, and employee exposure are not in dispute and are established by the parties’ stipulated
record. Also, Westar does not dispute that if its unpreventable employee misconduct defense is rejected,
employer knowledge is established by the presence of foreman Saylor at the time of the accident. Saylor
was present on site and was directly working with Palmer at the time of the accident. As foreman,
Saylor’s responsibilities included assigning work and ensuring safe working conditions for his crew.
Saylor’s knowledge of the unsafe conditions and Palmer’s work within the safe minimum approach
distance without appropriate rubber gloves may be imputed to Westar. Revoli Construction Co.,
19 BNA OSHC 1682, 1684 (No. 00-0315, 2001).
Unpreventable Employee Misconduct
Westar asserts that any violation of § 1910.269(l)(2) was the result of supervisor and employee
misconduct. In addition to Palmer, Westar argues that foreman Saylor’s failure to instruct Palmer to
utilize PPE or move away from the open primary compartment was also unpreventable misconduct.
As an affirmative defense, it is Westar’s burden to show that Saylor and Palmer’s misconduct
were unpreventable. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1875 (No. 91-1167, 1994). In order
to establish unpreventable employee misconduct, the Review Commission requires an employer to prove
that it has (1) established work rules designed to prevent the violation, (2) adequately communicated
these work rules to its employees, (3) taken steps to discover violations, and (4) effectively enforced the
rules when violations are discovered. American Sterilizer Co., 18 BNA OSHC 1082, 1087

                                               -6-

(No. 91-2494, 1997). The action of the employee must represent a departure from a work rule that the
employer has uniformly and effectivelycommunicated and enforced. Mosser Construction Co., 15 BNA
OSHC 1408, 1414 (No. 89-1027, 1991).
In addition, the Review Commission noted that “where a supervisory employee is involved, the
proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to
establish since it is the supervisor’s duty to protect the safety of employees under his supervision . . . .
A supervisor’s involvement in the misconduct is strong evidence that the employer’s safety program was
lax.” Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1016-1017 (No. 87-1067, 1991).
Westar’s employee misconduct defense is established based on the parties’ stipulated record and
the Secretary’s lack of rebuttal evidence. The record shows that Westar has established work rules
designed to prevent the cited unsafe condition which were communicated to employees, including Saylor
and Palmer, monitored for compliance, and enforced by Westar.
The Secretary’s sole argument in her brief that Westar’s misconduct defense must be denied
because “for a supervisor with Mr. Saylor’s experience and training to engage in such activity [stand by
and watch a second year apprentice open an energized compartment and be within the minimum
approach distance without appropriate PPE] suggests that this is not an isolated occurrence and that
respondent’s safety program is lax, is speculative, and not supported by the record (Secretary’s Brief,
p. 5). On the contrary, the parties’ stipulated record shows that Westar’s periodic monitoring visits never
observed safety infractions regarding Saylor’s crew, and there was no reason shown for Westar to
believe Saylor would not have complied with its safety rules (Exhs. 1, stip. #17 and 13).
“[T]he proper focus in employee misconduct cases is on the effectiveness of the employer’s
implementation of its safety program and not on whether the employee misconduct is that of a foreman
as opposed to an employee,” Brock v. L.E. Meyers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert.
denied, 484 U.S. 989 (1987). There is no dispute that when the crew initiated and performed their work
on the secondary compartment, as well as when they initially opened the primary compartment door, the
crew including apprentice Palmer were utilizing appropriate PPE. Also, although foreman Saylor was
working directly with Palmer when they re-opened the primary compartment door, the stipulated record
fails to show that he was actually aware at the time that Palmer was not wearing his rubber gloves.
Palmer was wearing all other appropriate PPE.

                                                -7-

Westar’s Work Rule
As an essential element of the misconduct defense, the employer needs to establish that it has
work rules designed to prevent the unsafe condition or violation of an OSHA standard. Pride Oil Well
Serv., 15 BNA OSHC 1809, 1816 (No. 87-692, 1992). A work rule is defined as “an employer directive
that requires or proscribes certain conduct, and that is communicated to employees in such a manner that
its mandatory nature is made explicit and its scope clearly understood.” J.K. Butler Builders, Inc.,
5 BNA OSHC 1075, 1076 (No. 12354, 1977) (warnings to employees to avoid unsafe areas are “too
general to be an effective work rule”).
In this case, the parties’ joint statement of uncontroverted material facts shows that Westar
maintains a written Customer Operations Safety Manual dated May 8, 2002 (Exhs. 1, 7). Section 1600
of the safety manual which is entitled “Minimum Approach Distance” includes the AC live-line work
minimum approach distance table. The table is similar to OSHA’s Table R-6 incorporated as part of §
1910.269. Both tables identify the minimum approach distance for 7,500 volts AC as 2 feet 1 inch phase
to ground and 2 feet 2 inches phase-to-phase exposure. Also, section 1600 identifies as the primary area
the “area surrounding exposed conductors and apparatus, energized at 600 volts or above in all directions
with a radius the length of the Minimum Approach Distance,” and advises employees that they are
considered in the primary area if they can reach, slip or drop anything into the primary area.
Section 800 of Westar’s safety manual entitled Personal Protective Equipment (PPE), requires
employees to wear 20 kv (Class II) rubber gloves when “a worker is or will be within the primary area.”
The manual instructs employees to “wear rubber gloves in the primary area” as part of Westar’s list of
“Six Fundamental Rules” of safety (Exh. 7, pg. 8). It is also noted that Class II rubber gloves are
required, regardless of the voltage when handling any equipment or enclosure when it may become
energized by internal failure or physical damage until the worker proves the case ground is intact by
visual inspection including “opening doors on pad mounted equipment or breaker doors” (§ 802.0.2).
Westar’s Customer Operations Safety Manual and updates are given to each employee upon their
employment or when there are revisions. Saylor and Palmer received the safety manual revisions dated
May 8, 2002, on June 4, 2002 (Exh. 8).

                                              -8-

Westar has established that it has work rules applicable to the work being performed on
December 4, 2002, and that the work rules are designed to prevent the unsafe condition addressed
by § 1910.269(l)(2). The Secretary does not dispute that Westar’s work rules were effective and clear
enough to eliminate an employee’s exposure to the hazard addressed by the standard and were designed
to prevent the hazard. Foster-Wheeler Constructors, Inc., 16 BNA OSHC 1344, 1349 (No. 89-287,
1993).
The adequacy of Westar’s work rules is shown by the parties’ stipulation that the accident on
December 4, 2002, would not have occurred if Saylor and Palmer had complied with Westar’s safety
rules (Exh. 1, Stip. #26). Also, it is noted that Saylor, Palmer and Schwaiger complied with Westar’s
safety rules during the planned portion of the scheduled work. Palmer wore 20 kv (Class II) rubber
gloves along with other PPE, including a switching jacket, hood and flame retardant shirt, and used a
hot stick until the secondary compartment was de-energized and the door to the primary side was closed.
Westar’s Communication of its Work Rules
The parties’ statement of uncontroverted material facts describe Westar’s efforts at
communicating its work rules to employees (Exh 1). The parties agree that employees, such as Palmer
in the apprenticeship program, are regularly instructed on the safety rules and appropriate procedures
(Stip. #8). The apprenticeship program which is jointly administered by local chapters of the I.B.E.W.,
provides extensive instruction and testing relating to hot work and requisite safety precautions (Stip. #9).
Foreman Saylor had completed the cable splicer apprenticeship program and has been a
journeyman cable splicer for ten years (Stip. #9). Terry Palmer was about to enter the third year of the
Apprenticeship Program (Stip. #9).
Upon employment, Westar provides and covers with employees its safety manual (Stip. #8).
Moreover, work procedures and safety rules are further discussed during monthly safety meetings and
other safety training sessions (Stip. #8).
The parties also agree that while employed by Westar, Terry Palmer received training on the use
of PPE, live line tools, hot work, safe electrical work practices, and appropriate clearances on the
following dates: January 31, 2002; February 23, 2001; July 7, 2002; August 6, 2002; September 9, 2002;
September 12, 2002; and October 23, 2002. Palmer also received on the job supervised training for the

                                                -9-

type of work that was performed on December 4, 2002; on May 21, 2001; June 5, 2001; July 4-5, 12
and 24, 2001; August 24 and 28, 2001; October 7 and 16, 2001; November 8-9, 11, and 18, 2001;
January 11, 19 and 26, 2002; February 11, 2002; March 4, 8, 11, 13 and 26, 2002; April 14, 2002;
May 14, 21, 27 and 29-31, 2002; July 3, 10, 12, 14, 18, 22 and 24, 2002; August 1, 15 and 30, 2002; and
September 15 and 25, 2002. Further, Palmer attended apprentice school from October 15-17, 2002, two
months prior to the accident, wherein these work safety rules were covered (Stip. #10).
The parties stipulate that foreman Saylor received training on use of PPE, live line tools, hot
work, safe electrical work practices and appropriate clearances on January 1, 1990; March 28, 1990;
February 25, 1993; July 7, 1993; August 24, 1994; November 15, 1994; December 20, 1994; April 26,
1995; May 4, 1995; January 4 and 30, 1996; March 3, 1997; May 17 and 24, 1999; March 3, 2000;
December 11, 2000; January 31, 2001; July 2, 2002; August 6 and 8, 2002; September 3 and 12, 2002;
and October 16, 2002. The Secretary also stipulates that as journeyman cable splicer for ten years,
Saylor had performed this type of work on a regular basis (Stip. #11).
Based on the parties’ stipulations, the record establishes that Westar’s safety rules regarding
minimum approach distances and use of PPE were adequately communicated to employees, including
foreman Saylor and apprentice Palmer. The Secretary does not argue and made no showing that
Westar’s communication of its work rules was deficient or ineffective.
Westar’s Steps to Discover Violations
Although an employer is not required to provide constant surveillance, it is expected to take
reasonable steps to monitor for unsafe conditions. Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940
(No. 97-1676, 1999); also see Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91-3467, 1995)
(employer’s duty is to take reasonably diligent measures to detect hazardous conditions through
inspections of worksites; it is not obligated to detect or become aware of every instance of a hazard).
Effective program implementation requires “a diligent effort to discover and discourage violations of
safety rules by employees.” Paul Betty d/b/a Betty Brothers., 9 BNA OSHC 1379, 1383 (No. 76-4271,
1981). Also, it is noted that § 1910.269(a)(2)(iii) provides that employers are required, through regular
supervision and annual inspections, to monitor employee compliance with, among other things,
§ 1910.269(l)(2). Westar was not cited for noncompliance with § 1910.269(a)(2)(iii).

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The parties’ stipulation of unconverted material facts (Exh. 1) include:
1. Section 102.1 of Westar’s Customer Operations Safety Manual requires all employees
to review and comply with its mandates as well as to enforce safety rules with fellow employees by
discussing violations with them directly or reporting them to their supervisors (Stip. #12). Also, § 102.2
of the safety manual mandates that foremen instruct their crews regarding safe work practices, monitor
compliance by the crews, counsel and/or discipline those who violated the safety manual, and to report
such violations to a supervisor so that those violations can be investigated (Stip. #13).
2. Westar’s management conducts jobsite visits almost daily (Stip. #14). In April 2002,
Westar’s director of electrical distribution instructed electric distribution managers to go to jobsites on
a daily basis (when practicable) and, at a minimum, perform weekly crew audits. The record shows that
manager Raymond Lara, who supervised Saylor’s crew and two other crews, visited Saylor’s jobsites
at least once a week and made reports of the crew audits to the director of electric distribution
(Stip. #14). According to Lara’s affidavit, the purpose of his visits was to observe the crew’s compliance
with Westar’s Customer Operations Safety Manual (Exh. 13).
3. The electric distribution managers were additionally required to conduct monthly
employee safety assessments (Stip. #15). The safety assessments required managers to evaluate, among
other things, the use of PPE. Manager Lara conducted 8 employee safety evaluations over the eight
months preceding the accident on December 4, 2002. Lara’s evaluations found that Saylor’s crew
complied with, among other things, Westar’s PPE requirements (Stip. #15). The safety assessments
were conducted pursuant to a safety checklist which included assessment of rubber gloves in the primary
area, PPE, and a hot work permit (Exh. 13, with attachments) Lara’s predecessor had previously
conducted employee safety assessments of Saylor and his crew. He similarly found that Saylor’s crew
complied with, among other things, Westar’s PPE requirements. Two of the evaluations included
instances in which the crew was performing hot work (Stip. #16). Lara’s affidavit states that he never
observed any safety infractions by Saylor or his crew and never had to issue a corrective action notice
(Exh. 13). Lara concludes that he had no reason to believe that “Saylor or Palmer would not have
complied with Westar’s Customer Operations Safety Manual on December 4, 2002" (Exh. 13).

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4. Customer Operations Safety personnel periodically visit jobsites to ensure compliance
with the safety manual. When violations of safety rules are observed, disciplinary notices are issued.
Saylor had been a cable foreman since October 19, 2000, without incident. Based on jobsite visits by
Customer Operations safety personnel, no safety infractions were observed regarding Saylor’s crew
(Stip. #17).
5. Palmer had performed similar work as performed on December 4, 2002, for two years
as an apprentice without incident. During those two years, Palmer had performed work on electrical
transformers on at least 40 separate days, including multiple transformers. Even on days when Palmer
was not servicing transformers, he frequently performed work that required him to maintain minimum
clearance or use proper PPE (Stip. #19). Also, in the apprentice program, foremen consistently rated
Palmer in the highest possible category for safety - “Very safety conscious, knows safety rules, makes
safety suggestions” (Stip. #20).
The parties’ stipulated record establishes that Westar’s monitoring was adequate. The Secretary
acknowledges that Westar had no reason to believe Saylor would not have complied with its safety rules
(Stip. #17). “In such circumstances, where the employer maintains an appropriate monitoring or
inspection program, the burden is on the Secretary to demonstrate that the employer’s failure to discover
the violative conditions was nevertheless due to a lack of reasonable diligence” Texas A.C.A. Inc., 17
BNA OSHC 1048, 1050 (No. 91-3467, 1995). The Secretary made no such showing as to Saylor or
Palmer. Also, there is no showing that Westar had received any prior OSHA citations including a prior
citation for violation of § 1910.269(l)(2).
Westar’s Enforcement of Safety Rules
Adequate enforcement is also viewed as a critical element of the misconduct defense. To show
that an employer’s disciplinary system is more than a paper program, an employer must have evidence
of having actually administered the discipline outlined in its policy and procedures. See Rawson
Contractors, Inc., 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003) (despite written disciplinary policy,
there was no showing that there was any progressive discipline). Evidence of a variety of disciplinary
measures, which progress to higher levels of punishment designed to provide deterrence, tends to
demonstrate that an effective disciplinary system is in place. On the other hand, evidence showing a
failure to progress to higher levels of discipline may indicate ineffective enforcement. Also, factors such

                                               -12-

as the employees’ repeated noncompliance with work rules or misconduct involving a number of
employees may be indications of ineffective enforcement. GEM Industrial Inc., 17 BNA OSHC 1861,
1865, (No. 93-1122, 1996) aff’d,18 BNA OSHC 1358 (6th Cir. 1998) (although the employer had several
verbal and written reprimands, it was proved to be ineffective enforcement because the same work rule
had been violated three times in the month prior to the OSHA inspection).
Based on the parties’ stipulation of uncontroverted material facts (Exh. 1), Westar has disciplined
more than 29 employees since November 1990 for safety infractions (Stip. #21). This includes
employees who have been disciplined and/or terminated for failing to use PPE and foremen disciplined,
demoted, or terminated for failing to ensure their crews used PPE (Exh. 15 with attachment). Westar’s
discipline included written warnings, suspensions of up to two weeks, and demotion.
As a result of the accident on December 4, 2002, Saylor received a 15-day suspension for failing
to ensure that Palmer was wearing proper PPE (namely, 20 kv Class II rubber gloves) within the
minimum approach distance of the energized live front transformer (Stip. #27). Saylor received a notice
of corrective action dated January 10, 2003, which was two months before receiving the OSHA citation
(Exh. 16). Precast Services, Inc., 17 BNA OSHC 1454, 1456 (No. 93-2971, 1995), aff’d without
published opinion, 106 F.3d 401 (6th Cir. 1997) (consideration of post inspection discipline may be
considered provided that it is viewed in conjunction with pre-inspection discipline).
Although the stipulated record fails to detail Westar’s disciplinary program, the record does show
that it enforced progressive discipline for noncompliance with its safety rules. The Secretary does not
dispute the existence of Westar’s disciplinary program or that it was not enforced.
Therefore, Westar’s unpreventable employee misconduct defense is supported by the parties’
stipulated record.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance with

Rule 52(a) of the Federal Rules of Civil Procedure.

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ORDER
Based upon the foregoing decision, it is ORDERED:
1. Serious violation of § 1910.333(a)(1) was withdrawn by the Secretary.
2. Serious violation of § 1910.333(c)(2) was withdrawn by the Secretary.
3. Serious violation of § 1910.269(l)(2), as amended, is vacated and no penalty is assessed.

                                                /s/ Ken S. Welsch
                                                KEN S. WELSCH
                                                Judge

Date: January 6, 2004

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