Davis H. Elliot Company

Plain-English summary

A Davis H. Elliot Company foreman was electrocuted when a 6-foot-4-inch ground wire contacted a 7,200-volt line about 52 inches away. He did not use the available rubber gloves, sleeves, or insulating hoses. The judge found that the ground wire breached the minimum approach distance and that the foreman's supervisory knowledge was attributable to the company. The citation was nevertheless vacated because the company proved unpreventable employee misconduct through adequate written rules, orientation and testing, repeated safety meetings, 16 audits of the crew, and documented enforcement. The foreman's departure from precautions he had used earlier that day was found unforeseeable. A second item was withdrawn by the Secretary.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.950(c)(1)(i); 29 C.F.R. § 1926.955(c)(3)
• Outcome: Item 1a was vacated, and item 1b was withdrawn.
• Key point: The company established unpreventable employee misconduct despite proof of noncompliance and supervisory knowledge.

Full text (OSHRC public release)

Davis H. elliot Company, Docket No. 03-1362

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 03-1362

Davis H. Elliott Company,

Respondent.

Appearances:

Joseph B. Luckett, Esq., Office of the Solicitor, U. S. Department of Labor, Nashville, Tennessee

For Complainant

Carl B. Carruth, Esq., McNair Law Firm, P.A., Columbia, South Carolina

For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

Davis H. Elliot Company (DHE) was upgrading electric power lines in Athens, Alabama, on
April 16, 2003, when the crew’s foreman/lineman was electrocuted while attempting to bond the
ground wire to a neutral line. The foreman, who was not wearing rubber gloves and sleeves, was
working on a newly constructed pole which had no energized lines. He was electrocuted when the
6 foot, 4-inch piece of ground wire contacted an energized line approximately 52 inches away on the
existing pole.

As a result of an investigation by the Occupational Safety and Health Administration
(OSHA), DHE received a serious citation on July 14, 2003. The citation alleges that DHE violated
29 C.F.R. § 1926.950(c)(1)(i) (item 1a) for permitting the employee to approach an exposed
energized part closer than 2 feet with a conductive object without appropriate insulation or guarding,
and 29 C.F.R. § 1926.955(c)(3) (item 1b) for failing to insulate or isolate the employee or to ground
a conductor being installed where there was a possibility of the conductor accidentally contacting
an energized circuit. The citation proposes a penalty of $6,300.00. DHE timely contested the
citation.

The hearing was held in Decatur, Alabama, on May 25-26, 2004. The parties stipulated
jurisdiction and coverage (Tr. 5). The Secretary withdrew the alleged violation of § 1926.955(c)(3)
(item 1b) (Tr. 3). The parties filed post-hearing briefs.

DHE denies that it violated § 1926.950(c)(1)(i) (item 1a). DHE argues that its
foreman/lineman was not working within the minimum approach distance because the power pole,
hardware, and all lines where he was working were not energized. DHE asserts that it was
unexpected and not reasonably anticipated for the ground wire to contact the energized line
approximately 52 inches away on an adjacent, existing pole. DHE argues that it lacked knowledge
of the hazard and if a violation is found, it was due to unpreventable employee misconduct.

For the reasons discussed, the alleged violation of 29 C.F.R. § 1926.950(c)(1)(i) is vacated.

Background

DHE is engaged in the construction of power transmission and distribution systems primarily
in the southeastern United States. DHE’s corporate place of business is Roanoke, Virginia, and its
operations are handled from Lexington, Kentucky. DHE employs approximately 800 employees.
The company’s safety manager is Dave Summers (Tr. 10, 41, 246-247).

In April 2003, pursuant to a contract with Athens Utilities, DHE was engaged in constructing
and upgrading new electric power lines and poles adjacent to the existing power lines in Athens,
Alabama (Tr. 60, 186). DHE contracted to set new poles in the ground, install anchors, pull in new
conductors, and take out the existing lines (Tr. 333). DHE utilized two crews to perform the work
which had been going on for approximately two months (Tr. 60). General foreman Sam Haskins
oversaw the work of the two crews (Tr. 10, 53).

The crew foremen were linemen Danny Parsons and Joe Boose (Tr. 11, 106, 331). The crews
worked 10-hour days, 4-day weeks, Monday through Thursday (Tr. 70, 75). Their normal work
hours were 6:00 a.m. to 4:30 p.m. (Tr. 357). Crew foreman Parsons had been employed by DHE for
approximately six months (Tr. 250).

On April 16, 2003, Parsons’s crew was engaged in attaching new conductor lines and a
neutral line on two new power poles at the corner of Browns Ferry and Reid Road, Athens, Alabama
(Exhs. C-1, R-12; Tr. 10, 62, 333). The crew was trimming, clipping, and tying the lines at the
conductors (Tr. 62). Parsons’s crew consisted of lineman, Wade Casey, operator/groundsman
Richard Wright, and groundsman Chris Weems (Tr. 11, 62). Foreman Parsons and groundsman
Wright worked at one pole while lineman Casey and groundsman Weems worked at the other pole
(Tr. 69). Nothing on the new poles, including the conductor lines and hardware, were energized
(Tr. 43, 48). However, the existing poles and lines, which were adjacent to the new poles, remained
energized (Exhs. C-4, C-6; Tr. 23, 31). During the morning’s work, Parsons wore rubber gloves
with sleeves and laid rubber hoses across the adjacent energized lines (Tr. 31-32, 50, 337). He
worked from an insulated bucket (Exh. C-4).

General foreman Haskins, who oversaw the work of the two crews, was present throughout
the morning with Parsons’s crew (Tr. 53, 338). At the time of the accident, he had left the site to get
materials from the warehouse (Tr. 53, 339). Haskins went to the warehouse at approximately 2:00
p.m. (Tr. 340).

At approximately 3:40 p.m., foreman Parsons removed the rubber hoses from the adjacent
energized lines and returned the bucket to the ground, apparently thinking that he was finished.
Once on the ground, he realized that the ground wire had not been bonded to the neutral line (Tr. 51,
92, 190). The contract specifications required three ground wire connections, one to the neutral line
on either side of the pole and one to the guy wire (Tr. 186-187, 350). According to DHE, this is a
routine job which takes approximately 10 minutes (Tr. 253, 351).

To do the job, Parsons obtained a 4-foot piece of copper wire, some connectors, and raised
the aerial bucket up to the new pole. He positioned the bucket approximately one foot below the
neutral line and on the opposite side of the pole from the adjacent energized lines (Exhs. C-2, C-5,
R-13; Tr. 190, 241, 262). Parsons was approximately 25 feet above the ground (Tr. 241). To bond
the neutral on one side of the new pole, Parsons uncoiled the ground wire, which is a continuous
piece of copper wire stapled to the pole before it is set into the ground. The coiled ground wire near
the top of the pole was 6 feet 4 inches long (Exhs. C-7, R-11, R-19; Tr. 191, 205, 214, 225, 253).
Although rubber gloves and sleeves were in the aerial bucket, Parsons did not wear them (Tr. 31, 51,
85). He also did not place rubber hoses over the adjacent energized lines. When Parsons uncoiled
the ground wire to attach it to the neutral line, the ground wire contacted the adjacent energized line,
approximately 52 inches away

(Exh. R-11; Tr. 23, 29, 34, 47, 179, 182-183, 191, 261). The
energized line was 7,200 volts (Tr. 42, 176). Parsons was in the aerial bucket for a “very few
minutes before the accident happened” (Tr. 51). No one saw the accident (Tr. 23, 240).

On April 17, 2004, at approximately 12 noon, Compliance Safety and Health Officer
Michelle Sotak initiated an investigation of the accident. DHE’s field safety director Donald Adkins
had the accident site recreated by having the aerial bucket moved into the same position on the new
pole. The only difference was that the copper wire had been removed from the energized line and
re-coiled (Tr. 12, 63-64, 262). Compliance Officer Sotak took photographs, interviewed employees,
and used the measurements provided by DHE (Tr. 11, 42-43). Based on her recommendation, a
serious violation of 29 C.F.R. § 1926.950(c)(1)(i) was cited on July 13, 2003.

Discussion

Alleged Violation of 29 C.F.R. § 1926.950(c)(1)(i)

The citation alleges that on April 16, 2003, the foreman/lineman, while working in an aerial
bucket without rubber gloves and sleeves, allowed the grounding wire to approach an exposed
energized conductor line.

Section 1926.950(c)(1) provides that:

No employee shall be permitted to approach or take any conductive object without
an approved insulating handle closer to exposed energized parts than shown in
Table V-1 unless;

(i)The employee is insulated or guarded from the energized part (gloves or
gloves with sleeves rated for the voltage involved shall be considered
insulation of the employee from the energized part), or

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

(iii)The employee isolated, insulated, or guarded from any other conductive
object(s), as during live-line bare-handed work.

Section 1926.950 applies to the construction of electric transmission and distribution lines
and equipment. At the time of the incident, DHE was erecting new poles and installing new power
lines for the distribution of electric power for Athens Utilities. The minimum approach distances
required by § 1926.950(c)(1) applied to DHE’s work.

According to Table V-1, in § 1926.950(c)(1), the minimum approach distance to an energized
line with voltage of less than 15,000 volts phase-to-phase is 2 feet (24 inches). DHE does not
dispute that the energized line which was contacted, carried 7,200 volts (Tr. 29, 179). There is no
disagreement that Parsons’s minimum approach distance to an energized line was 2 feet (Tr. 59, 145,
217).

If within the minimum approach distance of 2 feet, § 1926.950(c)(1) requires insulating,
guarding or isolating the employee or energized line. DHE acknowledges that Parsons was not
wearing rubber protective gloves and sleeves and the adjacent energized line was not insulated or
protected from accidental contact at the time of the accident (Tr. 167). Also, the ground wire which
Parsons uncoiled was 6 feet 4 inches and was approximately 52 inches from the energized line.

DHE’s argument that Parsons’s work on the new pole did not violate the 2-foot minimum
approach distance because nothing on the new pole was energized which required isolation,
insulation, or guarding, is rejected. In addition to an employee working within the minimum
approach distance, the standard also does not permit conductive objects, such as the uncoiled ground
wire, to be within the minimum approach distance of exposed energized parts. The uncoiled ground
wire, which was in excess of 6 feet long, was only 52 inches from the exposed energized line.
Parsons’ uncoiling of the ground wire breached the 2-foot minimum approach distance and he was
electrocuted when the ground wire came in contact with an adjacent energized line. Such a breach
of the minimum approach distance was reasonably predictable. The uncoiled ground wire created
approximately 4 feet of wire which could reach into the minimum approach distance. Based on the
elevated position of the work, the close proximity of the energized line, the ground wire’s flexibility
by being held only at one end by a staple, the location of the staple on the side of the pole, the
uncoiling of the wire by the lineman, and the outdoor conditions including wind made the possible
contact of the ground wire with the energized line reasonably predictable. DHE’s field safety
director Donald Adkins agreed that Parsons should have anticipated the wire coming within the
minimum approach distance of the energized line once he uncoiled the ground wire and recognized
the length (Tr. 240-241). Adkins testified that due to the length of the wire, reaching the energized
line has to be considered possible (Tr. 369). Adkins’ report of his investigation into the accident
found that:

The extension of Danny’s body (as defined in the minimum approach
standards) caused by handling a piece of the copper on the pole
ground and the actual pole ground put Danny in direct violation of the
minimum approach distance. The failure to use (total isolation),
protective cover is also a direct violation of OSHA and Company
standards. (Exh. C-9; Tr. 243-244).

Regardless of how the accident occurred, the ground wire held by Parsons came within the
2-foot minimum approach distance of an energized line and neither the energized line nor Parsons
was insulated, guarded or isolated as required by § 1926.950(c)(1).

DHE’s argument that it lacked knowledge of a violative condition is rejected (Tr. 215, 240,
348). In order to establish employer’s knowledge, the Secretary must show that the employer knew,
or with the exercise of reasonable diligence could have known of the violative condition. Employer
knowledge may also be shown when its supervisory employee has actual or constructive knowledge
of the condition. Dun Par Engineered Form Co. , 12 BNA OSHC 1962 (No. 82-928, 1986).
“Because corporate employers can only obtain knowledge through their agents, the actions and
knowledge of supervisory personnel are generally imputed to their employers, and the Secretary can
make a prima facie showing of knowledge by proving that a supervisory employee knew of or was
responsible for the violation.” Todd Shipyards Corp. , 11 BNA OSHC 2177, 2179 (No. 77-1598,
1984).

There is no dispute that foreman Danny Parsons was a supervisory employee and was in
charge of the crew. He supervised the crews’ work and provided safety training to employees each
morning (Tr. 330, 335). His knowledge of the closeness of the energized line and the lack of
protective equipment may be imputable to DHE.

Parsons was aware of the physical conditions
constituting the violative condition and recognized the potential hazard by taking appropriate
precautions earlier in the day by wearing rubber gloves with sleeves and placing rubber hoses over
the adjacent energized lines (Tr. 337).

DHE agrees that Parsons’s lack of protection violated its safety rules and OSHA standards
(Tr. 348, 368-369). DHE was aware of the possible hazard from the existing energized lines. DHE’s
general foreman Haskins, who oversaw the crew’s work, testified that the work Parsons was doing
required him to wear rubber gloves and sleeves (Tr. 358). DHE’s safety director Donald Adkins
investigated the accident and concluded the “the failure to use (total isolation), protective cover is
also a direct violation of OSHA and Company standards” (Exh. C-9; Tr. 243, 376).

Unpreventable Employee Misconduct

Although noncompliance with § 1926.950(c)(1) is found, DHE asserts that a violation was
due to unpreventable employee misconduct. In order to establish employee misconduct, DHE has
the burden to show that it has (1) established work rules designed to prevent reasonably anticipated
violative conditions; (2) adequately communicated the work rules to its employees; (3) taken steps
to discover violations of the rules; and (4) effectively enforced the work rules when violations have
been discovered. Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-237, 1994).

DHE agrees that the accident would not have occurred if Parsons had followed the
company’s safety procedures for remaining outside the 2-foot approach distance unless wearing
rubber gloves with sleeves and placing insulating hoses on the adjacent energized conductors. DHE
asserts that Parsons’s activity was a departure from its work plan and did not comply with its safety
rules (Tr. 167, 358).

1. DHE’s Safety Rules

DHE has a written “Safety Handbook and Work Process Manual” which contains the
company’s safety work rules (Exh. R-5). A copy of the manual is given to all linemen and
employees including Parsons who received a copy on December 9, 2002 (Exh. R-16; Tr. 1421, 297).

DHE’s safety manual contains three written safety rules (Rules 1.29(b), 3.03 and 3.43) which
address minimum approach distance and the use of personal protective equipment (Exhs. R-5, C-8).
The rules require an employee to wear protective gloves with sleeves if he can reach or the object
in his hands can reach into the minimum approach distance (Tr. 54). This includes the handling of
conductive objects, such as tools and equipment, within the approach distance and identifies the
minimum approach distances. In comparison with the requirements of § 1926.950(c)(1), DHE’s
written safety rules require the same levels of protection and are adequate to protect an employee
against the hazard of electrocution.

DHE’s Safety Rule 1.29: provides:

Wear properly-rated gloves and sleeves according to Table L3.03 and
at the following times:

(a)When working within the approach distance of any conductor
(covered or uncovered) energized at 50 volts or more.

(b)When using conductive tools or applying material which
could violate the minimum approach distance of any
conductor energized at 50 volts or more.

(c)When working on or near vehicles or equipment which are
not grounded and are being treated as energized.

DHE’s Safety Rule 3.03 provides:

Unless properly protected by an approved method, workers shall not
go or take any conductive object within the following approach
distances from any exposed energized conductor or equipment:

With a voltage of 7,200 volts, DHE’s minimum approach distance is 2 feet, 2 inches
(Table L 3.03) as opposed to the 2-foot requirement in § 1926.950(c)(1). DHE explained that its
minimum approach distance is based on OSHA’s general industry standard for “Electric power
generation, transmission, and distribution” at § 1910.269 which is more encompassing (Tr. 168).

DHE’s Safety Rule 3.43 provides:

When working within reach of lines and equipment energized at from
50 to 34,500 volts, each worker shall use insulating protective
equipment as specified in L 3.05 or suitable barriers shall be installed
to prevent accidental contact.

Although he would not have anticipated the grounding wire to contact the energized
conductor, general foreman Haskins testified that “our rules state that if you or anything that you
have in your hand will reach inside that approach distance, then, we use three lines of protection.
We've got the bucket truck, you cover it up with your rubber hoses, and your rubber gloves and
sleeves” (Tr. 348). DHE agrees that Parsons, by not wearing protective gloves with sleeves and by
not covering the energized lines, violated its safety rules (Tr. 167, 240). Compliance Officer Sotak
agreed that Parsons had violated DHE’s safety rules (Tr. 54). Her testimony that DHE’s rules were
deficient because there was no specific procedure for grounding the neutral to the pole is rejected
(Tr. 38). If Parsons had complied with DHE’s safety rules, he would not have been exposed to a
hazard and would have complied with the requirements of § 1926.950(c)(1) .

The record, therefore, establishes that DHE has appropriate safety rules to address the hazard
and conditions present on April 16, 2003.

2. DHE’s Communication of the Safety Rules

In addition to written safety rules, DHE also shows that its safety rules were communicated
to employees including Parsons. Prior to being hired, all potential new employees receive
orientation (Tr. 90). The orientation takes between six to eight hours and includes a discussion of
the minimum approach distance (Tr. 145, 247). After the orientation, the potential new hires are
given a written examination on the material covered during the orientation. The written examination
must be passed in order to be considered for hire (Tr. 143). Additionally, for linemen and
apprentices, DHE has an accredited apprenticeship course for lineman training (Tr. 248-249).

Parsons, an experienced lineman, had previously worked as a lineman for another company
(Tr. 250-251). He still had to take DHE’s orientation class and pass the written examination before
being hired by DHE (Tr. 294). His class covered the minimum approach distance and protective
equipment (Tr. 294). Parsons’ series of written tests included one on minimum approach distance
which he scored 100% (Tr. 147, 296).

After orientation, Parsons attended a quarterly foremen’s safety meeting in January 2003, for
four hours. The meeting discussed safety issues including the minimum approach distance and the
proper cover up by use of rubber gloves and sleeves (Tr. 306-307). Also as foremen, Parsons
conducted regular job safety meetings in the morning for the crew (Exh R-15; Tr. 335). During his
employment with DHE, Parsons participated in 41 job safety meetings (Exh. R-15). It is noted that
on the morning of April 16, 2003, the safety meeting identified the safety equipment including
gloves, sleeves, and hoses necessary for the job and stated “use plenty of cover up” (Exh. R-15).              Groundsman Weems testified that DHE conducted “tailgate meetings every once in a while”
(Tr. 85). He also stated that he was not familiar with the specific minimum approach distances
(Tr. 86). The record shows that prior to the accident, Weems attended four job safety meetings
during April 2003 (Exh. R-2). It is noted that although his job as groundsman did not require him
to work close to energized conductors, he knew the meaning of minimum approach distance. Also,
he testified that he wore rubber gloves whenever setting poles (Tr. 92, 114).

The record shows that DHE adequately communicated its safety rules to Parsons.

3. Steps to Discover Violations of Safety Rules

Field safety director Adkins testified that he conducts surprise job site visits when he inspects
the crews for safety compliance and proper work procedures (Tr. 146). Safety inspections are also
conducted by the general foreman, job superintendent, upper management, and the field safety
department (Tr. 148).

The record shows that Parsons’s crew was audited for safety 16 times during the approximate
six months he was employed by DHE (Exh. R-14). None of the safety audits found any violations.
Adkins inspected Parsons’s job site on March 26, 2003, while the crew was changing out junction
poles with transformers. He found no violations (Exh. R-3; Tr. 149). Similarly, safety director John
Morris found no violations with Parsons’s crew on January 15, 2003 (Exh. R-17).

General foreman Sam Haskins, who oversaw the crews’ work on the project, had been on site
until approximately 2:00 p.m. on the day of the accident observing Parsons (Tr. 337, 340). Haskins
saw that Parsons worked with rubber gloves with sleeves and the adjacent energized lines were
covered with rubber hoses (Tr. 337). He also testified that he never saw Parsons or the crew violate
the company’s safety rules (Tr. 355).

The record shows that DHE took steps to discover safety violations and there is no history
of safety violations by Parsons.

4. DHE’s Enforcement of Safety Rules

DHE maintains a graduated disciplinary program with verbal warnings, written warnings,
suspensions and terminations. The disciplinary program is used to enforce employees’ compliance
with company safety requirements.

According to DHE, if a foreman fails to enforce safety rules, he will be reprimanded
(Tr. 147). DHE has issued 37 written notices of safety violations from 1998 to 2002 to employees,
including foremen, for failing to use gloves and sleeves, failing to properly cover up and minimum
approach infractions (Exh. R-4; Tr. 153, 154, 156, 157, 159, 160, 162, 166, 285, 288-289, 301, 310-316).

Although groundsman Weems testified that he was not familiar with DHE’s disciplinary
program, there is no evidence that anyone in Parsons’s crew received any reprimands (Tr. 86, 320).
Also, the Secretary’s argument that there is no showing of disciplinary action in Alabama is rejected.
DHE had been working on the Athens utility project for a “couple of months” and there is no
showing that DHE had any other projects in Alatama (Tr. 11, 293).

Unpreventable employee misconduct has been established. DHE has shown that it has
appropriate work rules, which it communicated to Parsons, and monitored and enforced compliance.
Parsons’s action of not putting on his rubber gloves with sleeves, which were in the aerial bucket and
not re-placing the rubber hoses over the adjacent energized lines while he performed a 10-minute
job, was unforeseeable and not anticipated by DHE.

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.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1.           Item 1a, serious violation of 29 C.F.R. § 1926.950(c)(1)(i) is vacated.

2.           Item 1b, serious violation of 29 C.F.R. § 1926.955(c)(3) is withdrawn by the
Secretary.

/s/ Ken S. Welsch

KEN. S. WELSCH

Judge

Date: December 16, 2004