Public Utilities Maintenance, Inc.

Plain-English summary

A Public Utilities Maintenance crew painted a 69-kilovolt transmission tower while the lines remained energized. An experienced crew leader received an electric shock on a tower where a live jumper loop was less than the required three-foot approach distance from part of the structure. The judge held that this maintenance painting was governed by the electric power standard, not the construction standards. PUMI should have obtained or measured clearances, but instead relied on visual estimates from the ground, told painters to be careful, and failed to station a dedicated safety observer at each tower as its plan required. Those shortcomings established constructive knowledge and defeated the employee-misconduct defense. The serious violation was affirmed with a $4,200 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.269(c); 29 C.F.R. § 1910.269(l)(2)
• Outcome: Minimum-approach-distance violation affirmed as serious with a $4,200 penalty; separate item withdrawn.
• Key point: Experienced workers cannot be left to estimate energized-line clearances without measurements and the supervision required by the employer's safety plan.

Full text (OSHRC public release)

                                  United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1120 20th Street, N.W., Ninth Floor
                            Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 08-1831
PUBLIC UTILITIES MAINTENANCE, INC.,
Respondent.

APPEARANCES:

For the Complainant: For the Respondent:
James Glickman, Esq. Chris Georgoulis, Esq.
U.S. Department of Labor Georgoulis & Associates, PLLC
Office of the Solicitor 45 Broadway, 14th Floor
JFK Federal Building, Room E-375 New York, New York 10006
25 New Sudbury Street
Boston, Massachusetts 02203

Before: Covette Rooney
Administrative Law Judge

                                    DECISION AND ORDER

   This case is before the Occupational Safety and Health Review Commission (“the Commission”)

pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act”), to review
a citation issued by the Secretary of Labor (“Secretary”). The citation alleges that respondent, Public
Utilities Maintenance, Inc. (“PUMI”) committed a serious violation of the Act by failing to comply with
the standard at 29 C.F.R. § 1910.269(l)(2) on the grounds that “Employees were violating the safe
approach distance requirements when they were painting the power transmission tower.” The Secretary
proposes a penalty of $4,200.00 for the violation. Respondent contested the citation, and the hearing in
this matter was held on June 3-4 and 8-9, 2009, in Boston, MA. Both parties have filed post-hearing
briefs and reply briefs. For reasons set forth below, the citation is affirmed and the proposed penalty is
assessed.
 BACKGROUND
PUMI is an industrial painting contractor that specializes in the painting of energized electrical
transmission towers. (Tr. 509) On July 22, 2008, the painting crew was assigned to paint electrical towers
345 and 346 owned by National Grid in Belchertown, MA., which were part of National Grid's E5/F6
transmission line. (Joint Prehearing Statement, Admitted Facts 4(d) and (f)) PUMI had already
completed painting approximately 130-150 towers on the line. (Joint Prehearing Statement, Admitted
Fact 4(d))
The towers on the E5/F6 line are constructed of steel. (Tr. 19)1 Each support a total of six
transmission wires. (Tr. 26) The towers have three cross-arms, lower, upper and middle, that extend
horizontally in two directions from a vertical support. (Exhibits G-1-5) The towers have two
configurations. One type is a “straight” wire configuration where the transmission wires are attached to a
vertical insulator that hangs down from the cross-arms of the tower. (Tr. 28, 37) Tower 346 has a straight
wire configuration. The second type of tower has a “looped” wire configuration. On this type of tower,
the transmission wires are attached to horizontal insulators that extend in two directions from the cross-
arms of the tower. (Tr. 23-26) The section of wire on either side of the insulators is connected by a
“jumper loop” that hangs beneath the insulator and completes the electrical connection. (Tr. 25-26, Ex.
G-1) This jumper loop is a live conductor. (Tr. 29) Tower 345 has a looped configuration. (Tr. 23) Both
towers carry 69,000 volts of electricity. (Joint Prehearing Statement, Admitted Fact 4(d))
To prevent rusting, the towers are painted approximately every twenty years. (Tr. 47, 100-101)
Besides painting, the only other task performed by PUMI on the towers of the E5/F6 line was to attach
aerial numbers to the towers so they could be more easily identified. (Tr. 48) The work did not alter or
improve the towers' structure or change the configuration of the lines. The work did not involve the
addition or replacement of the structure of the transmission system. (Tr. 101)
The contract between PUMI and National Grid called for the lines to be painted while energized.
(Tr. 98) In only one instance, in 2006, was a tower deenergized prior to painting. (Tr. 419) When
painting energized lines, the minimum approach distance (“MAD”) for the E5/F6 line was 36 inches. (Tr.
183-185) This is the distance that, under the cited standard, each painter is required to keep away from
the energized parts on the tower. (Tr. 70)

1
"Tr" refers to the hearing transcript.
"Ex. G-" refers to the government’s exhibits.
"Ex R-" refers to PUMI's exhhibits.

                                              2

On July 22, 2008, a crew, supervised by foreman Nestor Chaparro, was assigned to paint towers
345 and 346. As foreman, Chaparro had the authority to order a work stoppage in case of a serious safety
issue. (Tr. 95, 374) Chaparro also had the authority to request deenergization before a tower is painted.
(Tr. 422) Chaparro's supervisor that day was Peter Karantenislis, PUMI's project manager. (Joint
Prehearing Statement, Admitted Fact 4(e)) PUMI’s Site Specific Safety Plan requires the company to
“supply a qualified worker to act as a safety observer at each tower the painters are working.” (Ex.R- 6,
p.6, Tr. 97, 387) The purpose of the safety observer is to warn any painter if he is encroaching on the
MAD and to be available to perform a rope rescue if a painter is injured on the tower. (Tr. 97, 100) The
employees painting each tower have a crew leader. It is the responsibility of the crew leader to climb the
tower and check the condition of the tower. The crew leader also checks the distance from the cable to
the tower. Once he determines that the cables are the correct distance, he gives the order for other
employees to climb up the tower. (Tr. 332, 456) Under the safety plan, however, the foreman as well as
the crew leader has the responsibility to assess each tower to insure that minimum approach distances can
be maintained. (Ex. R-6, pp. 5-7, Tr. 97-98) Where a structure poses a concern, it is required to be noted
and painted at such time as the line can be taken out of service. (Ex. R-6, pp. 6-7, Tr. 97-98) Company
policy is that if a tower arm was too close to a wire, the employees are not to paint it. The decision
whether to paint the arm is made by the painters. (Tr. 402, 465, 470)
The painters are equipped with two lanyards. (Tr. 55) This enables them to move along the arm
while clamped and while kneeling, lock the second clamp at the new location, then remove the first
clamp and continue their movement as they paint. (Tr. 460) The painters kneel and crawl as they move
along the transmission arm. (Tr. 470) They never stand on the arms. (Tr. 460, 469-470) Painters carry a
gallon bucket of paint onto the towers and painting mitts which they would dip into the paint and rub on
the towers. (Tr. 53)
Crew leader Carlos Mejia had more than 30 years experience painting towers. (Tr. 331, 402) On
July 22, 2008, Chaparro pointed out the loop at Tower 345 and told the employees that they had to be
careful. (Tr. 389) Mejia was assigned to climb Tower 345 because he had experience with loop towers.
(Tr. 399, 464) Nobody saw what happened next. However, testimony from National Grid and PUMI
employees at the site establish that there were a flash and the sound of an explosion. (Tr. 60-61, 474)
Employees found Mejia seated on the middle arm, conscious, grimacing in pain, but moving. (Tr. 62-63,
475) A rescue was performed. (Tr. 63, 475) After the rescue, Mejia could not remember what occurred.

                                             3

(Tr. 476)
As a result of the accident, OSHA compliance officer (“CO”), Robert Whitehall, conducted an
inspection of the site. As a result of that inspection, PUMI was issued a citation alleging two serious
violations of the Act. Item 1, which alleged a violation of 29 C.F.R. § 1910.269(c) was withdrawn prior
to the hearing and is no longer before the Commission. Item 2 alleged a serious violation of 29 C.F.R. §
1910.269(l)(2)2 on the grounds that “Employees were violating the safe approach distance requirements
when they were painting the power transmission tower.” Under Table R-6, which sets forth the
appropriate minimum approach distances based on nominal phase to phase voltage, the minimum
approach distance for lines carrying 46.1 to 72.5 kilovolts of electricity is 3 feet. As noted infra, the lines
at Tower 345 and 346 were carrying 69 kilovolts.
DISCUSSION
A. THE VIOLATION
To establish a violation of an OSHA standard, the Secretary must establish that: (1) the standard
applies to the facts; (2) the employer failed to comply with the terms of that standard; (3) employees had
access to the hazard covered by the standard, and (4) the employer could have known of the existence of
the hazard with the exercise of reasonable diligence. Atlantic Battery Co., 16 BNA OSHC 2131, 2138
(No. 90-1747, 1994).

2
The standard provides.
1910.269 Electric power generation, transmission, and distribution.
* * *
(l) Working on or near exposed energized parts. This paragraph applies to work on
exposed live parts, or near enough to them, to expose the employee to any hazard they
present. * * *
(2) Minimum approach distances. 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.

                                               4

1. Applicability of the Standard
At the outset, PUMI argues that the citation should be vacated because it was involved in
construction work and, as such, the cited standard is inapplicable. PUMI relies primarily on 29 C.F.R. §
1926.12 which defines construction work as “work for construction, alteration, and/or repair, including
painting and decorating” (emphasis added). PUMI asserts that it is well settled that a regulation should
be construed to give effect to the natural and plain meaning of its words. Diamond Roofing Co. v.
OSHRC, 528 F.2d 645, 649 (5th Cir. 1976)(citing cases). According to PUMI, the plain meaning of 29
C.F.R. § 1926.12 is that painting constitutes construction work and, therefore, that the painting of the
towers is governed under the Construction Industry Standards of Part 1926.
PUMI also argues that the legislative history of 29 C.F.R. § 1910.269 indicates that the standard
was designed to cover electrical utility workers. The final rule mentions line workers, apprentice line
workers, working line foremen, substation electricians and general utility mechanics but nowhere
mention painters. 59 Fed. Reg. 4320, 4321 (Jan. 31, 1994).
PUMI reads the standards too narrowly. The construction industry standards at 29 C.F.R. Part
1926 only apply to employers who are engaged in construction work or in operations that are integral or
necessary to construction work. See B.J. Hughes, 10 BNA OSHC 1545, 1547 (No. 76-2165, 1982).
Activities that could be regarded as construction work should not be so regarded when they are
performed solely as part of a non-construction operation. Id. Moreover, activities that are ancillary to
and in aid of primarily non-construction activities are not construction work. Royal Logging Co.,7 BNA
OSHC 1744, 1750 (No. 15169, 1979). Maintenance work is not considered construction work. Gulf
States Utilities Co., 12 BNA OSHC 1544, 1546 (No. 82-867, 1985) Indeed, by its own terms, 29 C.F.R. §
1910.269 specifically applies to the maintenance of power transmission lines. 29 C.F.R.
§1910.269(a)(l)(i).
Here, it is not disputed that the purpose of PUMI's painting activities was to maintain the towers
and prevent them from rusting. (Tr. 47, 101) Besides painting and putting on the aerial numbers, PUMI
employees conducted no other work on the towers. (Tr. 48, 101) OSHA Instruction, CPL 2-1.38 (June
18, 2003) clearly addresses the instant situation. In pertinent part it states in Section X “Construction vs.
Maintenance” at paragraph B. 4, that “[s]cheduled touch-up and spot painting done to maintain
equipment or structures is not construction. Therefore, maintenance painting for power generating,
transmission, and distribution equipment is covered by §1910.269, while painting to complete newly

                                              5

built structures and buildings is construction covered by §1926. Additionally, a complete repainting job
in one room or on a major portion of a structure or building is construction and removal of lead-based
paint is also construction.”3
The problem with PUMI's argument is that it assumes that the purpose for including painting
within the definition of construction work is to deem all painting a construction activity. PUMI misreads
the intent of the standard. Rather than making all painting a construction activity, the definition is
intended to short-circuit any argument that painting that is integral or necessary to a construction activity
is not covered under the construction industry standard. Thus, an employer painting a newly built
addition to a house cannot claim that it was not engaged in construction work merely because it had no
part in the actual construction of the structure.
The history of the standard, cited by PUMI, supports the applicability of the standard. Though not
explicitly including painters, the preamble clearly states the intention that the standard is intended to
apply to “maintenance” of transmission lines. 59 F.R. at 4322. Accordingly, the standard was intended to
apply to the painting of transmission lines where, as here, the purpose of the painting is maintenance.
Moreover, under Secretary of Labor v. CF&I Steel Corp., 499 U.S. 144 (1991), the Commission
must defer to the Secretary's reasonable interpretation of OSHA standards. I find nothing unreasonable in
the Secretary's determination that PUMI's painting activities are covered under the general industry
standards. Accordingly, PUMI's argument must fail.
2. Were employees exposed to the hazard?
PUMI argues that the Secretary failed to prove that Mejia came within three feet of the electrified
wire and, therefore, failed to establish that he was exposed to the hazard. Under PUMI's theory, there can
be no exposure to the wires unless an employee actually comes within the three foot MAD. PUMI
appears to be under the misconception that the MAD constitutes the borders of the zone of danger around
the electrified wire and that unless an employee actually comes within that zone of danger he or she
cannot be exposed to the hazard.

3
The evidence establishes that PUMI’s work here is more accurately characterized as a “touch­
up” rather than a “complete repainting.” PUMI employees were not required to paint any portion
of a tower if they believed that they could not do so without coming uncomfortably close to the
energized wires, and there were several occasions where parts of the towers went unpainted. (Tr.
375, 465, 470) Had this job been intended to constitute a “complete repainting” it would have
been necessary to deenergize the lines. (Tr. 496) PUMI had not requested that a line be
deenergized since 2006. (Tr. 419).

                                                6

Respondent reads the concept of exposure too narrowly. The violation occurs when an employee
comes within the three foot MAD. The zone of danger, however, is broader. The Secretary may prove
exposure by showing that “employees either while in the course of their assigned duties, their personal
comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces,
will be, are, or have been in the zone of danger.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No.
504, 1976), quoted in Capform Inc., 16 BNA OSHC 2040, 2041 (No. 91-1613, 1994). Here, the evidence
establishes that Mejia had to kneel, sit or crawl on the tower arm and that the upper tower loop was only
32 inches above the highest diagonal member on the middle arm of the tower. (Ex. 16, pp. 4, 6, 7, Tr.
158-161, 163, 470) The lowest structural member of the arm was only 58 inches below the jumper loop
(Ex. 16, pp 6-7) which left only 22 inches of space below the jumper loop that was not within the MAD.
Mejia was in the zone of danger because any “minimal upward movement, inadvertent or otherwise,
would have placed some part of [the employee's] body closer than the [minimum approach distance]
from the energized parts.” North Landing Line Construction Co., 19 BNA OSHC 1465, 1471 (No. 96­
0721, 2001).
In any event, as noted, infra, the preponderance of the evidence demonstrates that some part of
Mejia's body came, at a minimum, one to two inches from the loop wire. This, standing alone, is
sufficient to demonstrate that Mejia was exposed to the hazard.
3. Did PUMI fail to comply with the standard?
PUMI properly notes that there were no eye witnesses to the incident and that Mejia could not
recall what had occurred. Therefore, it asserts that it cannot be determined with any certainty that Mejia
violated the three foot MAD. Rather, it contends that it is possible that an electrical charge jumped and
struck the employee. PUMI points to the testimony of CO Whitehall to support its contention that, under
certain circumstances, an electrical charge can jump.
The CO's testimony does not support PUMI's argument. According to the CO, it is possible for an
electrical charge to arc without a wire being touched. He noted that a 250,000 volt line could jump a foot
or two. (Tr. 189) However, he also testified that a 69,000 volt line won't jump and that “[y]ou almost
have to contact it.” (Tr. 189) Further, he opined that, under the right temperature and humidity
conditions, a 69,000 volt line could possibly jump an inch or two. (Tr. 193) Obviously, the voltage could
have jumped an inch or two and struck Mejia, only if he was well within the three foot MAD4 . (Tr. 208)
4
It is also worth noting that Chaparro's initial reaction was that Mejia contacted the line.
According to National Grid's System Control Operator, who was at the scene, Chaparro told him

                                             7

While we cannot tell the particular details of the accident, there is no question that a
preponderance of the evidence establishes that Mejia was shocked because some part of his body came
well within the three foot minimum approach distance set by the standard.
4. Knowledge
An employer is charged with constructive knowledge of a violative condition if it failed to
exercise reasonable diligence. Precision Concrete Construction, 19 BNA OSHC 1404, 1407 (No. 99­
0707, 2001). Here, the Secretary showed that PUMI had constructive knowledge because it could have
known, with the exercise of reasonable diligence, that Mejia was exposed to coming closer than 36
inches from the power line, in violation of the standard. North Landing Construction Co., 19 BNA OSHC
at 1472.
Reasonable diligence involves several factors, including a employer’s “obligation to inspect the
work area, to anticipate hazards to which employees may be exposed, and to prevent the occurrence.”
North Landing Construction Co., 19 BNA OSHC at 1472, citing Frank Swidzinski Co., 9 BNA OSHC
1230, 1233 (No. 76-4627, 1981). Specifically, an employer must inspect the area to determine what
hazards exist or may arise during the work before permitting employees to work in an area, and the
employer must then give specific and appropriate instructions to prevent exposure to unsafe conditions.
Automatic Sprinkler Corp. of America, 8 BNA OSHC at 1387; Butler Lime & Cement Co., 7 BNA
OSHC 1973, 1975 (No. 855, 1979). A preliminary inspection must be made even where the employees
are experienced. J.H. MacKay Electric Co., 6 BNA OSHC 1947 (No. 16110, 1978). Moreover, the actual
or constructive knowledge of the employer’s foreman or supervisor can generally be imputed to the
employer. Jersey Steel Erectors, 16 BNA OSHC at 1164, 1993-95 CCH OSHC at 41,216. See also
Donovan v. Capital City Excavation Co. Inc., 712 F.2d 1008 (6th Cir. 1983) (actions of company
supervisors are imputed to company).
The evidence demonstrates that PUMI was aware that looped towers presented special dangers
due to the proximity of the loops to the arms that were to be painted. (Tr. 389) Indeed, Mejia was
assigned to paint the looped tower because of his experience in painting towers of that configuration. (Tr.

right after the accident that Mejia hit the line with his hard hat. (Tr. 63) Moreover, in the
accident report (Ex. G-11) Chaparro wrote that the accident was caused when Mejia's hard hat
come to touch close to the conductors. (Tr. 391) While Chaparro did not directly witness the
accident, his initial reaction is indicative of the general understanding that, for Mejia to have
received the shock, he had to at least come within the MAD.

                                             8

464) Yet, neither supervisor Karantenislis nor foreman Chaparro ever requested measurements from
National Grid or took any other steps which would have informed them that employees painting the
looped towers would be working extremely close to the MAD. (Tr. 384, 388, 420) Rather, Chaparro
made an eyeball determination from the ground that there was clearance adequate to allow the employees
to conduct their work. (Tr. 387-388) Arming Mejia only with an admonition to “be careful,” the foreman
relied on Mejia to climb the tower and determine for himself if it was safe to paint. (Tr. 388)
Furthermore, the evidence establishes that PUMI's own Safety Plan requires that an observer be stationed
at each tower. (Ex. G-6, p.5, Tr. 97) Even when, as here, the crew is split between two towers, a safety
observer is still required at each tower. (Tr. 97) Here, however, Chaparro split his time between Towers
345 and 346, leaving Mejia without adequate supervision. (Tr. 386)
Accordingly, I find that the preponderance of the evidence establishes that with the exercise of
reasonable diligence, PUMI would have known that its employees were exposed to the MAD of the
energized lines and would have taken appropriate steps to avoid the violation.
B. Unpreventable Employee Misconduct
Once the Secretary makes a prima facie showing that the employer knew or, with the exercise of
reasonable diligence, could have known of the violative condition, the employer can establish, as an
affirmative defense, that it had a thorough safety program which was adequately communicated and
enforced and that the violative conduct of the employee was idiosyncratic and unforeseeable. Brock v.
L.E. Myers Co., 818 F.2d 1270, 1277(6th Cir. 1987); Pride Oil Well, 15 BNA OSHC at 1815; Mosser
Constr. Co., 15 BNA OSHC 1408(No. 89-1027, 1991). As part of the defense, the employer must show
that it has taken steps to discover violations. Pride Oil Well, id., R Zoppo Co., 9 BNA OSHC 1392, 1395
(No. 14884, 1981).
PUMI argues that it has a safety program that properly and adequately trains its employees to
work outside of the MAD, that its safety program is adequately supervised, communicated and enforced
and that Mejia's failure to observe the MAD was the result of unpreventable employee misconduct. First.
PUMI argues that it has work rules designed to prevent the violation and which are adequately
communicated to its employees. The evidence establishes that PUMI has a Site-Specific Safety Plan,
written in both English and Spanish. (Ex. G-6) This plan includes safety rules about observing the MAD,
including requirements that the foreman and painting crew conduct a documented assessment to
determine if painting can be accomplished without encroaching on the MAD. (T. 97) Where structures

                                             9

pose a concern, the plan requires that all concerns be noted and painted at such time as the line can be
taken out of service. (Tr. 97) Moreover, PUMI's painters are under instruction that they should not paint
the arm of any tower about which they feel uncomfortable. (Tr. 43, 69-70, 402) Indeed, employees
testified that there were occasions when they did not paint an arm because they felt that the work would
bring them too close to the wires. (Tr. 375, 465, 470)
PUMI asserts that it conducts daily safety meetings prior to the start of each work day. (Tr. 408,

460. 468 ) During these meetings, which lasts 10-15 minutes, Chaparro reviews the safety rules and
     procedures for their work and points out the potential hazards of their work. (Tr. 72, 398) These meetings
     are conducted in Spanish so they could be understood by the Spanish speaking painters. (Tr. 72)
     Chaparro held a safety meeting attended by Mejia, on July 22, 2008 where they discussed the MAD,
     clearances, and pointed out the danger of the loop on Tower 345. (Tr. 398, 408-410, Ex. R-B)
     Furthermore, employees carry a card which outlines the minimum approach distances based on voltage.
     (Tr. 411) PUMI also provides training courses to its employees that covers, inter alia, training on
     minimum approach distances. Courses include High Voltage Electrical Safety Training, (Tr. 520, Ex. R­
     D) and the OSHA 10-Hour Safety Course (Tr. (Tr. 521, Ex. R-E)
     PUMI next argues that it took adequate and reasonable steps to monitor for violations. Foreman
     Chaparro testified that PUMI supervisor Karantenislis visited the job site about twice a week. (Tr. 371­
     372) According to PUMI’s safety plan, an observer is to be stationed at each tower. (Ex. G-6, p.5, Tr. 97)
     PUMI also points out that it holds industry certifications that attest to its safety record and quality
     operations. For example, PUMI holds QP-1 and QP-2 certifications from the Society of Protective
     Coatings (“SSPC”)5. (Tr. 449) PUMI is also certified by the ISO, an international standardization

5
The QP-1 certification covers, among other projects, the painting of electrical transmission
towers. It is a quality program that works mainly with steel structure painting, surface
preparation, control, worker training and quality control issues. A significant part of the
certification involves safety. (Tr. 484-485) The QP-2 certification has to do with hazardous
material generation and safety. (Tr. 485) Certification is a multi-step process that involves
having certain safety and health procedural manuals, including a “Corporate Health and Safety
Plan,” a “Safe Operating Procedure Manual,” and an “Inspection Procedure Manual.” (Tr. 486­
487) All QP1/QP2 members must be OSHA compliant and will have their certifications
suspended for having too many OSHA violations, too many accidents, or even one job-related
fatality. (Tr. 491) Members are subject to audits and evaluations, including annual audits and
unannounced audits. (Tr. 492-493) Any company with an Experience Modification Rating
(EMR) of 1.25 or more will be excluded from certification. PUMI has an EMR of 0.83 (Tr. 534­
535)

                                              10

organization, which measures quality of and safety of the company and which also requires a yearly
audit. (Tr. 514)
PUMI contends that it has an excellent safety record and that, prior to the Mejia accident, no
PUMI employee was ever injured at a PUMI work site. (Tr. 534) PUMI points out that Mejia was a
highly experienced employee and crew leader. As such, it argues that it was not required to provide
Mejia with constant supervision. General Dynamics Corp. v. OSHRC, 599 F.2d 453, 459 (1st Cir. 1979).
Therefore, PUMI contends that there was no reason for it to take elaborate measures to constantly
supervise Mejia, who was perhaps the most experienced painter in the entire company (Tr. 464) and who
was doing work that was routine to him.
Finally, PUMI contends that it adequately enforces its safety rules. PUMI points out that it has a
formal disciplinary program which consists of a disciplinary plan and recordkeeping. (Tr. 499-500)
PUMI has, what it describes as a “three strikes and you’re out” policy. (Tr. 500) Under this policy, the
first time a work rule is breached, the employee receives a verbal warning. A second violation within six
months results in a written warning and a day off. Finally, a third violation results in termination. (Tr.
500) A flagrant violation of fall protection rules can result in instant termination, even for a first offense.
(Tr. 500) PUMI avers that it never had to suspend or terminate an employee for violation of a safety rule
(Tr. 426), although two employees were terminated for drinking at the job. (Tr. 403, 426) Documentation
does reveal, however, that various PUMI employees have been disciplined for failing to follow work
safety rules. Indeed, Carlos Mejia was once disciplined for showing up at work without his personal
protective equipment. (Tr. 516, Ex. C-13 at pp. 3, 15)
I find that PUMI failed to establish the “unpreventable employee misconduct” defense. Although
PUMI established that it had a workrule requiring employees to maintain the three foot MAD, the
evidence demonstrates that there were serious flaws in its implementation of that rule.
PUMI relied too heavily on employees to determine when a hazard existed. The evidence
demonstrates that Chaparro made an eyeball determination that the loops were sufficiently distant from
the arms to enable employees to maintain a three foot clearance. This determination was made from the
ground. Chaparro, who was qualified to climb the towers, never either went up to determine for himself
whether the work could be safely done, or asked National Grid to provide the measurements that would
have revealed that at least one of the loops was no more than 32 inches from the middle arm on Tower

345. An employer “must make a reasonable effort to anticipate the particular hazards to which its

                                               11
     

     employees may be exposed in the course of their scheduled work.” Capform, Inc., 19 BNA OSHC 1374,
     1377 (No. 99-0322, 2001),aff’d No. 01-60417 (5th Cir.,March 20, 2002)(unpublished), citing Automatic
     Sprinkler Corp., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). This includes a duty to inspect an area
     and determine what hazards exist or may arise during work before permitting work in an area. The
     employer must then give specific and appropriate instructions to prevent exposure to unsafe conditions.
     Automatic Sprinkler Corp., 8 BNA OSHC at 1387. That Mejia and the other painters were experienced
     employees did not discharge PUMI from providing the proper instructions or taking the measures
     necessary to minimize the hazard. Butler Lime and Cement, 7 BNA OSHC at 1975.
     Although PUMI asserts that employees were instructed to maintain the three foot clearance, the
     evidence demonstrates that, on the date of the accident, they were given general instructions not to get
     too close to the wires. Neither crew leader Felix Britos nor painter Diego Espinolla testified that they
     were specifically warned to maintain a three foot clearance from the wires. Rather Britos testified that
     they were instructed on clearances during classes and carried a card that set forth the MAD for various
     voltages. (Tr. 461) At the morning meeting on July 22, they were reminded about observing the MAD,
     but when sent up on the towers, had to determine for themselves whether they could work safely. (Tr.
     461, 465) Similarly, Espinolla testified that at the morning meeting, Chaparro instructed the employees
     to “be careful” and not to paint the arm where “the cables were very close to the arm.” (Tr. 469)
     Critically, the painters had no measuring devices, but rather were left on their own to determine whether
     they could paint while kneeling, sitting or crawling along the tower arm without encroaching on the
     MAD and where any inadvertent movement of head, arm, or other body part could bring the employee
     within the minimum approach distance. This procedure constituted an undue reliance on employees to
     discover whether they could work safely. In this context, Chaparro’s admonition to the employees to “be
     careful” and to observe the MAD gave employees “too much discretion in identifying unsafe conditions
     and was therefore too general to be effective in preventing employee exposure.” Superior Custom
     Cabinet Co., 18 BNA OSHC 1019, 1021 (No. 94-200, 1997), aff’d, No. 97-60769 (5th Cir. Sept. 26,
     1997)(unpublished).
     Moreover, PUMI’s own safety manual requires that there be a spotter for each tower. The
     evidence shows, however, that at the date of the accident, foreman Chaparro, who was supposed to act as
     the spotter, divided his attentions between Towers 345 and 346. This made it likely that he would not be
     in a position to warn an employee on any given tower that he was getting perilously close to violating the

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     MAD6.
     I find that PUMI unduly relied on employees to determine when it was safe to paint the arm in a
     situation where an inadvertent movement could bring them within the MAD, and failed to provide the
     supervision of its employees adequate to prevent them from violating the MAD. Accordingly, PUMI
     failed to establish that the violation was the result of “unpreventable employee misconduct.”
     C. Penalty
     In assessing penalties, the Commission must give due consideration to the employer’s prior
     history and good faith, the size of the employer’s business, and the gravity of the cited violations. 29
     U.S.C. §666(j); S&G Packaging Co., 19 BNA OSHC 1503, 1509 (No. 98-1107, 2001).

     The Secretary proposed a penalty of $4,200.00 for the violation. OSHA Area Director Michael
     

     Goyda testified that, based on the gravity of the violation, the Secretary arrived at an unadjusted penalty
     of $7,000.00. A 40% reduction was made due to the size of the company, resulting in an adjusted
     penalty of $4,200.00. Due to the gravity of the violation, no deduction was made for good faith or
     history. (Tr.314)

     Considering the statutory factors, and considering the high gravity of the violation, I find that the
     

     Secretary’s proposed penalty to be appropriate and the proposed penalty of $4,200.00 is assessed.

                 FINDINGS OF FACT AND CONCLUSIONS OF LAW
     

     All findings of fact and conclusions of law relevant and necessary to a determination of the
     contested issues have been found specially and appear in the decision above. See Rule 52(a) of the
     Federal Rules of Civil Procedure.

6
The Secretary argues that National Grid twice complained to PUMI about employees failing to
maintain the MAD. (Tr. 134, 141-142) However, the letters National Grid sent to PUMI were
not produced at the hearing. Robert Maryyanek, Jr., a safety program manager for National Grid,
remembered seeing the documents, but could not recall what was in them. Maryyanek
remembered that the letters were received before the Mejia accident, and could recall only that
they documented that PUMI was “spoken to about minimum approach distances.” (Tr. 142) I
find this testimony to be without value. While Maryyanek recalled that the letters documented
some discussion about PUMI employees observing the MAD, there is nothing in the record to
establish whether there was a problem with PUMI employees violating the MAD, or whether, for
example, National Grid was merely concerned that employees might be working close to the
MAD and was issuing a reminder to its subcontractor that the MAD had to be observed.

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ORDER

   For reasons set forth above, it is ORDERED that the citation for a Serious violation of

Section 5(a)(2) of the Act for noncompliance with 29 C.F.R. § 1910.269(l)(2) is AFFIRMED and
a penalty of $4,200.00 is ASSESSED.

                                                               /s/
                                                               Covette Rooney
                                                               Judge, OSHRC
   Dated: 17 November 2009
   Washington, DC




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