Tower Maintenance Corp.

Read the official release (oshrc.gov)

Plain-English summary

OSHA cited Tower Maintenance after a fatal accident during painting work on an electrical transmission tower. For one training item, the Secretary pleaded power-transmission standards and general PPE and electrical standards in the alternative, but the pleadings and later briefs reversed which set was primary. The judge appeared to affirm both the primary and alternative violations. The Commission remanded for the judge to clarify the pleading order and vacate whichever violations were alleged only in the alternative.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.132(f), 1910.269(a)(2)(i), 1910.269(a)(2)(ii), 1910.332(b)(1), and 1910.332(b)(2).
• Outcome: The case was remanded for clarification of the primary and alternative training allegations and vacatur of the alternatives.
• Key point: When standards are pleaded in the alternative, only one theory may prevail once the applicable primary theory is selected.

Full text (OSHRC public release)

TOWER MAINTENANCE CORP., Docket No. 13-0777

Walter, J. David
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Walter, J. David
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2018-08-03T16:00:00Z
2018-08-03T16:00:00Z
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false

false
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EN-US
X-NONE
X-NONE

United
States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
Docket No. 13-0777

TOWER MAINTENANCE CORP.,

Respondent.

APPEARANCES:

David M. Jaklevic,
Esq.; Radha Vishnuvajjala, Esq.; U.S. Department of Labor, Office of the
Solicitor, New York, NY

For
the Complainant

Michael
Rubin, Esq.; Goldberg Segalla LLP, Buffalo, NY

For
the Respondent.

REMAND ORDER

Before: ATTWOOD, Chairman;
and M ac DOUGALL, Commissioner.

BY THE COMMISSION:

Before the
Commission is a decision of Administrative Law Judge Carol A. Baumerich
affirming two citations issued to Tower Maintenance Corporation by the
Occupational Safety and Health Administration. OSHA cited Tower following a
2012 fatal accident at a New Jersey worksite where it was engaged in painting
an electric transmission tower. The Secretary subsequently amended these
citations twice, with the more recent amendment alleging “alternative”
violations under several citation items. One of these items is Citation 2, Item
2 (characterized as Serious Repeat), for which we specifically seek
clarification.

With respect
to Item 2, there is a discrepancy between the order of the alleged violations
described in the Secretary’s motion to amend his complaint and the order of the
alleged violations contained in the amended complaint itself. In the amended
complaint, the alleged violations are as follows: 29 C.F.R. §§ 1910.132(f)
(training for employees using personal protective equipment (PPE)),
1910.332(b)(1) (training for employees; electrical standard), and
1910.332(b)(2) (additional training for “unqualified persons”; electrical
standard), “ or in the alternative ” violations of two provisions under
the electric power generation, transmission, and distribution standard—29
C.F.R. §§ 1910.269(a)(2)(i) (training for employees) and
1910.269(a)(2)(ii) (additional training for qualified employees). (Amended Complaint
at ¶ IX). However, in the Secretary’s motion to amend the complaint, the order
of these allegations is reversed—a sequence which was reiterated in his
post-hearing brief, as follows:

Tower Maintenance violated 29 C.F.R. §§
1910.269(a)(2)(i) and (a)(2)(ii) by failing to provide each employee with fall
protection training required by the standard and by failing to provide training
on the work practices necessary for their safety. In the alternative ,
Respondent failed to comply with the parallel requirements in [§§] 1910.132(f)
and 1910.332(b)(1) and (b)(2). As [§] 1910.269 makes clear, the training
requirements in § 1910.269 apply “in addition to all other applicable standards
contained in this Part 1910.” 29 C.F.R. § 1910.269(a)(1)(iii). Thus, Respondent
was ultimately required to comply with both sets of training requirements
because employees were performing work covered by both [§] 1910.269 and Subpart
S . However, because Tower Maintenance was performing work more
specifically covered by [§] 1910.269 – namely, maintenance work on a
transmission tower that required the use of “qualified” employees – and because
the language of [§] 1910.269 also encompasses the training requirements of
Subpart S, the Secretary cites primarily to a violation of the training
provisions in [§] 1910.269.

(Sec’y Post-Hr’g Br. at 61)
(emphasis added). The Secretary also stated that “because [§] 1910.269
encompasses the requirements in Subpart S and is more specific to the work
performed by Tower Maintenance, [§] 1910.269 is the more appropriate standard.”
Id . at 63.

In her
decision, the judge analyzed this citation item in the same order the Secretary
set out in his post-hearing brief—noting that the Secretary alleged the
§ 1910.269 violations “primarily.” Tower Maint. Corp. , Decision and
Order, No. 13-0777, May 16, 2016, slip op. at pp. 8, n.10 and 63-66. It is
unclear, however, whether the judge accepted this as a further amendment of the
Secretary’s amended complaint—albeit without a motion or an express ruling—or
if she simply determined that the Secretary mistakenly reversed the order of
the allegations as set forth in his amended pleading.

In addition, the judge also appears to have affirmed violations of
almost all the provisions alleged under this citation item—including those
alleged by the Secretary in the alternative. Tower Maint. Corp. , slip op. at pp. 67-70. Indeed, the judge’s
order states as follows: “Item 2 of Citation 2, alleging
a repeat violation of 29 C.F.R. § 1910.269(a)(2)(i) is AFFIRMED.
Further , Item 2 of Citation 2, alleging serious violations of 29
C.F.R. §§ 1910.269(a)(2)(ii); 1910.332(b)(1) and (b)(2), is also
AFFIRMED.” Id. , slip op. at p. 77 (emphasis added). Under the
Commission’s procedural rules, “[a] party may set forth two or more statements
of a claim or defense alternatively . . . .” 29 C.F.R.
§ 2200.30(e). Where, as here, the Secretary makes an alternative
allegation, only one of his allegations can prevail, i.e. the alternative
allegation is moot if the first provision alleged is found to apply. See,
e.g., MasTec, N. Am., Inc. , 20 BNA OSHC 1900, 1902 n.4 (No. 99-0252, 2004)
(“Since we find compliance with the terms of [§] 1926.950(c)(1), we need not
consider the alternative allegation under [§] 1926.950(c)(2).”); Nat’l
Industr. Constructors, Inc. , 10 BNA OSHC 1081, 1086 n.8 (No. 76-4507, 1981)
(where Secretary alleged alternative violations of two separate provisions of
OSHA construction standards, Commission held that “resolution of the issues
raised concerning the alternative allegation . . . is
unnecessary[]” once one provision is found applicable); see also 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1282
(3d ed. 2016) (“Alternative . . . pleading usually is
drafted in terms of ‘either-or’ propositions . . . .”).

In these circumstances, we remand this matter to the judge to clarify
her decision regarding which provisions cited under Citation 2, Item 2 the
Secretary ultimately alleged in the first instance, and which he alleged in the
alternative. Based on her ruling on that issue and given her decision to affirm
all the violations alleged under this citation item, the judge should vacate
the violations she determines the Secretary alleged in the alternative. See,
e.g., Jimerson

Underground,
Inc. , 21 BNA OSHC 1459, 1461-62 (No. 04-0970, 2006) (remanding case where
judge had not ruled on the Secretary’s motion to amend complaint to assert
alternative allegations).

SO
ORDERED.

/s/ 

Cynthia L. Attwood

Chairman

/s/

Heather L. MacDougall

Dated: July 6,
2016                                                      Commissioner

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. 13-0777

TOWER MAINTENANCE CORP.,

Respondent.

Appearances:David M. Jaklevic, Esquire

Radha Vishnuvajjala, Esquire

U.S. Department of Labor, Office of the Solicitor, New York,
New York,

For the Complainant

Eli J. Rogers, Esquire

JoAnne M. Bonacci, Esquire

Dreifuss Bonacci & Parker, PC, Florham Park, New Jersey,

For the Respondent

Before:Carol A. Baumerich

Administrative Law Judge

DECISION
AND ORDER

Tower
Maintenance Corporation (Tower Maintenance or Respondent) is in the business of
“electric transmission tower repainting, maintenance, and related activities.”
(Ex. J-1 at ¶ 10.) Tower Maintenance employs teams of painters that climb
and paint electric transmission towers. On October 25, 2012, one of these
painters, JV, was electrocuted while painting a transmission tower at a height
of approximately 70 feet in Edison, New Jersey. (Tr. at 151; Ex. J-1 at ¶¶ 11, 14, 27.) Immediately after being
electrocuted, JV fell. As he fell, JV hit another Tower Maintenance painter,
RS, who at the time of impact was working at a height of approximately 40 feet.
(Tr. at 151.) Both employees then fell to the ground. JV died as a result of
the electrocution and RS suffered a broken shoulder, rib, and arm as a result
of the fall. (Ex. J-1 at ¶¶ 14, 15.) Both employees were wearing personal
fall arrest system (PFAS) devices.

As a result
of this incident, the Occupational Safety and Health Administration (OSHA)
inspected the worksite and, on April 8, 2013, issued Tower Maintenance two
citations alleging violations of OSHA’s electrical safety standards, fall
protection standards, and training standards, and initially proposing a $35,000
total penalty (later proposing a total penalty of $91,000). Tower Maintenance filed a timely notice of contest on April 12, 2013,
bringing this matter before the Occupational Safety and Health Review
Commission (Commission).

A hearing
was held in this matter in Newark, New Jersey, on the following dates: August
26–29, 2014, and January 12-14, 2015. Deposition testimony of three witnesses,
two of which were video recorded, is also in the record. (Exs. C-30, C-30(a),
J-2 (Da Silva); C-31, C-31(a) (Fonseca Alves); R-50 (Psareas) .) Because some witnesses did not speak English as their primary
language, an interpreter was utilized at points during the hearing and
depositions. (Tr. at 231-232, 235 (RS), 324-325 (Mackeivicz), 1003-1004
(Mackeivicz); Exs. C-30 at 7 (Da Silva), C-31 at 8 (Fonseca Alves).) Both
parties filed post-hearing briefs and post-hearing reply briefs. As discussed
below, the citations and proposed penalties are affirmed.

Jurisdiction

The record establishes that Tower Maintenance filed a timely notice of
contest and, at all relevant times, was engaged in a business affecting
commerce within the meaning of sections 3(3) and 3(5) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the Act). (Amended
Complaint and Answer at ¶¶ III, XIII; Ex. J-1 at ¶¶ II.2, II.3.) The Commission
has jurisdiction over the parties and subject matter in this case pursuant to
section 10(c) of the Act.

Threshold Issues

For each of
the citation items, the Secretary alleged electrical, fall protection, and
training violations of either OSHA’s “electric power generation, transmission
and distribution” standards found in 29 C.F.R. § 1910.269 or, in the alternative, of OSHA’s general electrical standards found
in subpart S starting at § 1910.301 and OSHA’s general personal protective
equipment (PPE) standards found in subpart I at § 1910.132.

To determine
which standard applies, the Commission looks to the cited working conditions. S.
Pan Servs. Co. , 25 BNA OSHC 1081, 1085 (No. 08-0866, 2014). On October 25,
2012, Tower Maintenance was engaged in repainting a lattice-type electric
transmission tower. (Tr. at 468; Ex. J-1 at ¶¶ 10, 11.) The purpose of
Respondent’s painting was to maintain the transmission tower. (Tr. at 469.)
Section 1910.269 applies to “the operation and maintenance of electric power
generation, control, transformation, transmission, and distribution lines and
equipment.” 29 C.F.R. § 1910.269(a)(1)(i). Based on this evidence, I find
that Respondent’s project in Edison, New Jersey was a § 1910.269 project. See
Pub. Util. Maint., Inc. , 417 F. App’x 58 (2d Cir. 2011) (unpublished)
(holding that § 1910.269 applies to painting performed as maintenance of an
electric transmission tower).

For the
alleged electrical violations, however, many of the standards within § 1910.269
presuppose that only “qualified” workers will be working because the working
conditions are so inherently dangerous. Therefore, many of the § 1910.269
standards explicitly state that the more protective standards under subpart S
of OSHA’s general electrical standards apply in those circumstances when
“unqualified” workers are working. See 29 C.F.R.
§ 1910.269(a)(1)(ii) (stating that the electrical safety-related work
practices of § 1910.269 do not apply “to electrical safety-related work
practices … covered by subpart S of this part.”); see also Electrical
Power Generation, Transmission, and Distribution; Electrical Protective
Equipment , 59 Fed. Reg. 4320-01, 4334-35 (Jan. 31, 1994) (“It should be
noted that, if unqualified employees are working on, near, or with electric
power generation, transmission, and distribution installations, §§1910.332
through 1910.335 [in subpart S] apply in any event”; “the Agency has made
application of most of the electrical requirements in [1910.269] dependent on
whether or not … the employee is qualified to perform the work.”); Electrical
Safety-Related Work Practices , 55 Fed. Reg. 31984-01, 31990 (Aug. 6, 1990)
(“[w]ork performed by other than qualified persons on, near, or with electrical
installations is covered by the work practices contained in [subpart S] …
because unqualified persons, by definition, do not have the training nor the
skills necessary to perform work safely very close to electrical
installations.”).

Subpart S
addresses the distance at which an “unqualified person” must stay from an
energized power line, and, under the facts of this case, it is a longer
distance (10 feet) than what is prescribed in § 1910.269 (2 feet 4 inches). 29
C.F.R. § 1910.333(c)(3)(i)(A)(1); 29 C.F.R. § 1910.269(l)(2). In
other words, an “unqualified person” must stay further away from an energized
power line than a “qualified person.” A threshold issue in this case, therefore,
is whether Respondent’s painters on the Edison project were “qualified.”

Furthermore,
with regard to the alleged fall protection and training violations, a finding
of whether Respondent’s workers were “qualified” also affects the standards at
issue. For the alleged fall protection violation, the cited § 1910.269 standard
requires all unqualified employees “to use fall protection any time they are
more than 4 feet above the ground,” as opposed to specific situations in which
a “qualified person” is not required to use fall protection. 29 C.F.R.
§ 1910.269(g)(2)(v) Note 2. With respect to the alleged training violation, the Secretary explains
that Citation 2, Item 2 was pled in the alternative because, while the primary
cited standard was the “more appropriate” standard cited in this case,
Respondent was also required to comply with the requirements in subpart S.
(Sec’y Br. at 62-63.) Indeed, § 1910.269 also requires an employer to comply
with any other applicable section 1910 standard, notwithstanding § 1910.5(c) :

This section [1910.269] applies in addition to all
other applicable standards contained in this Part 1910. Specific references in
this section to other sections of part 1910 are for emphasis only.

29 C.F.R.
§ 1910.269(a)(1)(iii). As discussed below, the “qualified person” finding
affects the applicability of the cited standards for the alleged training
violation in that two of the standards cited in the alternative also apply to
Respondent’s unqualified employees on the Edison tower.

The
analysis of whether Respondent’s employees were “qualified” follows the
findings of fact.

Alleged Violations

The July 14,
2014 Amended Complaint alleges violations of the following standards, which
standards are adjudicated in this case.

Citation
1, Item 1 , the alleged electrical safety violation, alleges a serious
violation of 29 C.F.R. § 1910.333(c)(3)(i)(A)(l), which provides:

The employer shall ensure that when an unqualified
person is working in an elevated position near overhead lines, the location
shall be such that the person and the longest conductive object he or she may
contact cannot come closer to any unguarded, energized overhead line than 10
feet for voltages to ground 50 kV or below.

29 C.F.R.
§ 1910.333(c)(3)(i)(A)(l) (emphasis added); Amended Complaint at
¶ VII. The Secretary proposes a penalty of $7,000 for this citation item.

Citation
2, Item 1 , the alleged fall protection violation, alleges a serious /
repeat / willful violation of 29 C.F.R. §§ 1910.269(g)(2)(iii) and
(g)(2)(v), which, according to the Amended Complaint, provide:

The employer shall ensure that each employee working
at elevated locations more than 4 feet (1.2 meters) above the ground on poles,
towers, or similar structures uses fall arrest equipment. The employer shall
inspect body belts, safety straps, lanyards, and body harnesses before use each
day to determine that the equipment is in safe working condition. Defective
equipment may not be used.

Amended Complaint at
¶ VIII. The Secretary proposed a $46,200 penalty for this citation item in the
Amended Complaint, but now proposes in his post-hearing brief that the penalty
for this citation item should be the maximum statutory penalty of $70,000.
(Sec’y Br. at 81.)

Citation
2, Item 2 , the alleged training violation, alleges a serious / repeat
violation of 29 C.F.R. §§ 1910.269(a)(2)(i) and (a)(2)(ii), which,
according to the Amended Complaint, provide:

Employees shall be trained in and familiar with the
safety-related work practices, safety procedures, and other safety requirements
in this section that pertain to their respective job assignments. Qualified
employees shall also be trained and competent in the skills and techniques
necessary to: distinguish exposed live parts from other parts of electric
equipment; determine the nominal voltage of exposed live parts; determine the
minimum approach distances correspondent to the voltages to which the qualified
employee will be exposed, and; the proper use of the special precautionary
techniques, personal protective equipment, insulating and shielding materials,
and insulated tools for working on or near exposed energized parts.

Amended
Complaint at ¶ IX. Here, I find that, as discussed below, none of
Respondent’s employees are “qualified.” To the extent that Respondent sent
unqualified employees, and in some instances untrained employees, to work on
the Edison tower within the minimum approach distance on this § 1910.269
project, I find that, as discussed below, Respondent violated the cited
standard that addressed the training requirements for “qualified” employees.
Further, I find that, as discussed below, the standards cited in the
alternative also apply to Respondent’s workers in this case because these
workers were not “qualified.”

For Citation
2, Item 2, the Secretary also alleges a serious / repeat violation of 29 C.F.R.
§§ 1910.132(f) and 1910.332 (b)(1) and (2), which, according to the
Amended Complaint, provide:

The employer shall provide training to each employee
who is required to use personal protective equipment in the proper use,
maintenance, and care of the personal protective equipment. Employees shall
also be trained in and familiar with the safety-related work practices required
by §§ 1910.331 through 1910.335 that pertain to their respective job
assignments. Employees who are not qualified persons shall also be
trained in and familiar with any electrically related safety practices not
specifically addressed by §§ 1910.331 through 1910.335 but which are necessary
for their safety.

(Sec’y Br.
at 61); Amended Complaint at ¶ IX (emphasis added). The Secretary proposes
a $14,000 penalty for this citation item.

Respondent
filed its Answer to the Amended Complaint on August 8, 2014. In its Answer,
Respondent denied the specific Amended Complaint allegations and asserted the
following affirmative defenses, among others: (1) excessive penalty in light of
the small size of the employer, among other factors, (2) the violations, if
any, were non-serious, (3) “adequate safety program run by knowledgeable
supervisory personnel” for the alleged training violation, (4) training was
done prior to allowing employees to perform work for the alleged training
violation, (5) “Respondent ensured the effectiveness of training and that the
employees had knowledge and skills needed to perform the operations safely” for
the alleged training violation, (6) unpreventable employee misconduct for the
alleged training violation, (7) all of the citations were not issued with
“reasonable promptness,” (8) unpreventable employee misconduct for the alleged
fall protection violation, (9) infeasibility for the alleged fall protection
violation, (10) unpreventable third-party and / or owner misconduct for the
alleged electrical violation, (11) unpreventable employee misconduct for the
alleged electrical violation, (12) unforeseeability for the alleged electrical
violation, (13) “third-party and / or owner assured that Respondent’s employees
would not come into contact with energized electrical lines in the course of
their work, and therefore, Respondent exercised reasonable diligence to ensure
compliance with the [alleged electrical] standards,” (14) impossibility for the
alleged electrical violation, (15) vindictive prosecution by the Secretary. Answer at ¶¶ IV-XXVIII.

Factual Background

I.   The Company – Tower Maintenance

A.  Officers and Employees

Tower
Maintenance was created in 2008 by Elizabeth Vlahopoulos, Tower Maintenance’s
President and sole owner. (Tr. at 783, 831, 908.) Ms. Vlahopoulos has worked
for more than twenty years in the construction industry, working mainly in the
office. (Tr. at 903-905.) Ms. Vlahopoulos’ husband, Peter Vlahopoulos, is Tower
Maintenance’s project manager / supervisor and has been working for Tower
Maintenance since it was created. (Tr. at 938-939.) Peter Vlahopoulos has
always worked in the construction industry, has over 25 years of experience
painting electrical towers, and has supervised “thousands” of painters. (Tr. at
1037, 1053.)

Tower
Maintenance employs mainly seasonal workers, having only three year-round,
office-staff employees. (Tr. at 833-834.) Its work is seasonal. Its seasonal
staff of painters and project supervisors fluctuates with the work load,
sometimes ranging from 10 - 30 employees. (Tr. at 833-835. See Tr. at
723.) According to Elizabeth Vlahopoulos, “everyone goes where the work is.
That’s why we always share workers, like the guys from Morris [Painting] , they go to public utilities, they come to us, and everybody trains
them.” (Tr. at 835.)

During the
months of August to October of 2012, it was the “busy season” for painting.
(Tr. at 696, 723.) Additionally, during the Edison project, Tower Maintenance
experienced employee turnover and employees taking unscheduled days off. (Tr.
at 698-699.) Some painters did not show up to work because of the nature of the
job – it was intensive labor, in hot weather, and some workers needed a break.
(Tr. 721-723.) As a result, Tower Maintenance continued to hire painters during
the project in an effort to fully staff the crews. Some painters, including the
deceased JV, were hired several weeks after the project began. (Tr. at 697-698,
722-723.)

The workers
for the Edison project at issue here consisted of two teams, one led
by supervisor Nikolaos Psareas and the other led by foreman Josimar Mackeivicz.
(Tr. at 705-706.) On October 25, 2012, the Tower Maintenance employees
engaged in tower painting work on the PSE&G Edison transmission tower
painting project were JV, RS, Alessandro De Almeida, Alan Fonseca Alves, Marcelo Silva, Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo,
Caio Resende, Domingos Da Silva, and Euflates Passos. (Ex. J-1 at
¶¶ 12-13, 17-27.) The painters that testified in this case spoke primarily
Portuguese, so they required an interpreter during depositions and at the
hearing. (Tr. at 231-232, 235 (RS); Exs. C-30 at 7 (Da Silva), C-31 at 8
(Fonseca Alves).) Peter Vlahopoulos speaks no Portuguese, only English and
Greek. (Tr. at 937.) Supervisor Psareas speaks English, Greek, and “some
Spanish,” but “not much” Portuguese. (Tr. at 682.) Foreman Mackeivicz speaks
Portuguese and “intermediate” English, and also required an interpreter at the
hearing. (Tr. at 324-325, 1003-1004.)

B.  History of OSHA Violations

Tower
Maintenance has a history of OSHA violations. (Ex. J-1 at ¶¶ 4, 5, 6; Exs.
C-25, 26, 27; R-45, 46.) In 2011, Tower Maintenance settled an OSHA citation
alleging violations of OSHA’s construction training and fall protection
standards, after one of its employees fell from the tower he was painting in
Macungie, Pennsylvania in 2010. (Tr. at 787, 896, 958-959, 961-962.) That employee was improperly tied
off on a step bolt on a pole tower when he fell and died as a result of the
fall. (Tr. at 787, 896, 958-962, 988-991.) Peter Vlahopoulos was the project
manager on that project. (Tr. at 958.)

Tower
Maintenance crafted a corrective action plan as a consequence of the 2010
Macungie accident. (Tr. at 784-788, 896, 927-928; Ex. R-3.) In the corrective
action plan, which was submitted as part of its bid for the Edison project at
issue here, Tower Maintenance stated that, due to the 2010 Macungie fall
accident, Tower Maintenance has taken the following steps, among 5 steps, to
prevent future occurrences:

1)  The
competent person is to remain onsite at all times when workers are working at
height;

2)  The
competent person is to inspect each worker's harness and lanyard not only at
the start of each day; inspection of all safety equipment will be made again as
each worker comes down from working at height. This inspection shall be done
routinely and repeatedly throughout the day and not only morning and at day's
end.

(Tr. at
787-788; Ex. R-3 at TMC00731.) The corrective action plan is dated June 12, 2012.
(Ex. R-3 at TMC00730.)

Before the
creation of Tower Maintenance in 2008, Peter Vlahopoulos was the vice-president
of another company, Tower Painting Company, Inc. (Tr. at 964-967, 971.)
Elizabeth Vlahopoulos was also employed by Tower Painting Company, Inc., prior
to the creation of Tower Maintenance. (Tr. at 906-907.) Tower Painting Company,
Inc., also employed teams of painters and, in March 2007, also was cited for
OSHA violations. (Tr. at 964-965, 980; Exs. C-46, C-47.) Tower Painting
Company, Inc. received citations for failure to provide employees with adequate
fall protection, failing to inspect employees’ PFAS devices for damage prior to
each use, and failing to remove defective PFAS devices from service, among
other citations. (Tr. at 980-85; Exs. C-46 at 2; C-47 at 13.) The citations were
affirmed in a Commission final order. (Ex. C-47.) See Tower Painting Co.,
Inc., 22 BNA OSHC 1368 (No. 07-0585, 2008). Peter Vlahopoulos participated
in the informal conference discussions with OSHA for that proceeding. (Tr. at 980; Ex. C-51.) 

A.  The Project – Edison, New Jersey

1.   Contract and Scope of Work

Tower Maintenance
contracted with New Jersey franchise utility company, Public Service Electric
and Gas (PSE&G), to paint 214 steel “lattice-type transmission support
structures,” also known as “electric transmission towers,” along highway Route
1 from Trenton to Edison, New Jersey. (Tr. at 468-469.) PSE&G wanted these
structures painted as a maintenance function, to protect the towers from
weathering, and to “extend the life of the structure.” (Tr. at 469.) As part of
the bid process, PSE&G required companies to submit a proposal package that
included a site-specific safety plan and a job hazard analysis. (Tr. at 478.)
As part of its proposal, Tower Maintenance submitted a site-specific safety
plan, entitled Health and Safety Plan (HASP) for PSE&G: Transmission Structure
Painting Project & Lead Paint Remediation RFP 31368 Various PSE&G
Transmission ROW – New Jersey. (Tr. at 478; 942-943; Ex. C-3.) It was dated
June 11, 2012. (Ex. C-3 at 1.) PSE&G requires bidders to submit such a plan
as part of the bid package so that PSE&G has “a level of confidence that
they have a plan and they know the work that they’re [d]oing and the hazards of
the work that they’re doing.” (Tr. at 478.) Tower Maintenance also submitted a
PSE&G Contractor Safety Qualification Questionnaire as part of PSE&G’s
vendor approval process. The safety questionnaire was signed by Elizabeth Vlahopoulos. (Tr. at
477-478, 785; Ex. R-3.)

After Tower
Maintenance was awarded the contract, PSE&G held a “pre-construction”
meeting with Tower Maintenance to go over:

…bringing them on the
property, reviewing the scope of work, talking about expectations, safety, you
know, they're expected to follow, their health and safety plan, wear all the
proper PPE. We also covered, you know, a hundred percent attachment. We covered
the lines would be energized. We covered where they would be staging from. We
covered how they're going about collecting the paint chips that are scraped off
of the structures. We talked about general housekeeping in and around the
PSE&G right-of-way. We talked about, you know, there'd be a PSE&G
representative at the assigned project and that would be their point of
communication for anything that they needed. We talked about that person would
also be there to escort them on and off the right-of-way in a legal fashion and
so forth.

(Tr. at 480-481.) The record shows that Tower Maintenance’s
project manager / supervisor Peter Vlahopoulos and supervisor Nikolaos Psareas
attended this meeting. (Ex. C-1 at 4.)

The towers that were to be painted were made of steel and
were similar, but varied slightly, in design. (Tr. at 468, 506; Ex. C-30 at
72.) Each tower had a “body” or “cage” that consisted of the main structure
itself, and also “arms,” on which the energized power lines were attached. (Tr.
at 469, 483. See, e.g. , Ex. C-14.) This “lay-out” of the energized power
lines varied by the tower, i.e. , some towers had energized power lines
attached to the arms located nearer to the tower body than others. (Ex. C-30 at
37.) The tower at issue had a total of 10 arms (two arms on either side of the
tower, at five different levels) that supported 12 insulators carrying power
lines attached to the arms . (Tr. at 485-495; Ex. C-40.) As relevant to
this case, the power line of interest, power line No. 3, was attached to the
subject tower’s arm about 2-3 feet from the edge of the tower body. (Tr. at
153, 155-156, 285, 537-538; Exs. C-9, C-14, C-14B, C-14D, C-15A, C-15C, C-30 at
6-19, C-31 at 105-108, C-40.) Power line No. 3 was energized at 26 kV and was
attached to the arm that was approximately 60 feet above the ground. (Tr. at
487, 495; Exs. C-14F, C-40.) Also on the tower was a ladder made up of
step bolts that ran up one leg of the tower to the tower’s mid-level, and then
the step bolt ladder ran up the centerline of the cage to the top of the tower.
(Tr. at 138-139; Exs. C-14A; C-31 at 66.) Power line No. 3 was 6 feet 5 and ½
inches from the centerline of the tower. (Tr. at 492.)

Tower Maintenance contracted with PSE&G to paint only
the tower body, not the arms where the power lines were attached. (Tr. at 431,
455, 483, 1044; Ex. C-1.) When beginning to paint a tower, the painters would
climb up the step bolt ladder to their designated position within the truss
structure, and then they would paint the truss structure of the tower around
them. During the painting of a tower, members of the painting team would
therefore be positioned at varying levels along the height of the tower. The
painters first applied red colored primer to the towers and then painted the
towers greenish-gray, twenty-four hours after the primer had been applied. (Tr.
at 253-254, 259). The Keeler and Long paint, containing zinc dust, used by the
painters on this project wa s conductive. (Exs. C-19, C-29).

The method by which they painted was as follows: each
painter carried two paint buckets, one on each hip, up the tower to his
location. (Tr. at 254-255; Exs. C-30 at 45; C-31 at 66-67.) The painter stowed
one paint bucket as reserve on a nearby step bolt or open area, and then
proceeded to paint the tower using the other bucket. (Ex. C-31 at 66-67,
106-107.) By using a personal fall arrest system (PFAS) device, each painter
had a certain amount of flexibility with his hands. They wore painting mitts on
each hand, dipped their hands into the bucket of paint, and hand-painted the
truss structure using their painting mitts. (Tr. at 256-257, 699-700,
1040-1042; Exs. C-30 at 46; C-31 at 69.) No brushes were used. Pictures and
testimony in the record show that the painters got covered with paint
head-to-toe as the painting job progressed. (Tr. at 257-259; Exs. C-28, C-30 at
63-66.) The painters got covered in paint because they were leaning against the
freshly painted tower cage out of necessity to reach other parts of the tower
cage. (Tr. at 305, 1052-1053; Ex. C-30 at 65.) The painters would latch and
re-latch their PFAS device as they moved around the truss to paint the entire
structure with their painting mitts. (Tr. at 891-892.) Because they were
latching and re-latching their PFAS device, the clips on their PFAS device also
got covered in paint because they could not take their painting mitts off
during the repositioning. (Tr. 348, 700; Ex. C-30 at 66.)

According to Tower Maintenance, each painter was instructed
to stay within the cage, or the truss structure, and not to venture out onto
the arms where the electric distribution lines were attached. (Resp’t Br. at
11, 17.) The testimony from the painters, however, indicates that this was not
clearly, effectively, communicated to them. According to Da Silva, they painted
the arms on some towers, and by doing so, emerged out of the tower cage. (Ex.
C-30 at 50.) Da Silva, however, testified that the arms for the tower at issue
here were not to be painted. (Ex. C-30 at 74.) Fonseca Alves, on the other
hand, testified that all of the arms for this tower were to be painted. (Ex.
C-31 at 104.)

Each tower took about one to two hours to paint. By the end
of October, the painters typically painted eight to ten towers per day. (Tr. at
256; 425-426.) On October 25, 2012, the team was on their third tower for that
day when the accident occurred. (Tr. at 287.)

2.   Project Supervision
and Project Safety

Neither Elizabeth nor Peter Vlahopoulos directly supervised
the painters on the worksite. Elizabeth Vlahopoulos visited the Edison project
once between August and October 25, 2012. (Tr. at 911.) Peter Vlahopoulos
visited the Edison project once or twice per week, dividing his time between
the Edison project and another project. (Tr. at 1020-1021.) The two leaders on
the Edison project were supervisor Nikolaos Psareas and foreman Josimar Mackeivicz. (Tr. at
705-706.)

As the supervisor, Psareas had the duty and responsibility
to “follow through on the work and make sure we all work safely, and coordinate
all the jobs through PSE&G.” (Tr. at 685.) He also was responsible for
overseeing the progress of the job, making sure the job was done properly, and
making sure everyone was following the safety rules. He had the authority to
discipline employees and direct the work being performed. (Tr. at 685-686.)

As the foreman, Mackeivicz would supervise his painters
from the ground, looking up at the painters using binoculars. (Tr. at
1011-1012.) He testified that if he saw a painter working without being tied
off, he would yell up to him and give him a verbal warning. (Tr. at 1012.)
After that, according to Mackeivicz, the employee would have to leave the job
site if he saw him working without being tied off again. (Tr. at 1012.)
Mackeivicz testified that he had to give two verbal warnings on the project at
issue. (Tr. at 1012.) However, foreman Mackeivicz testified that he was not
responsible for the safety of the employees. “I was responsible for telling
them the details of the job, what was supposed to be done by them, but not for
their safety.” (Tr. at 333.) He had the authority to discipline employees and
to recommend to his superiors “for someone to be fired.” (Tr. at 333.)

The only formal Tower Maintenance safety policy in the
record is the Health and Safety Plan (HASP) that was submitted to PSE&G as
part of Tower Maintenance’s bid package. (Ex. C-3.) In the HASP, Peter
Vlahopoulos and Nikolaos Psareas are noted as safety supervisors: Peter
Vlahopoulos as the Project Director and Psareas as the Health and Safety
Officer. (Ex. C-3 at 4-5.) Both were responsible for safety on the project
worksite. Peter Vlahopoulos was ultimately responsible for complying with the
OSHA regulations. (Tr. at 944; Ex. C-3 at 4-5.) Although required by the HASP,
the record does not contain any evidence that Tower Maintenance reviewed the
HASP with its painters or required them to fill out an agreement stating that
they would comply with its requirements. (Ex. C-3 at 6.) Foreman Mackeivicz
testified that he was never shown the HASP before or during the Edison project
at issue. (Tr. at 336.)

At the beginning of a typical workday, supervisor Psareas
and foreman Mackeivicz met their crews in the morning, at about 6:00 a.m., at a
staging site. (Tr. at 262-263.) At this staging site, the crew cleaned and
gathered their supplies, which included a PFAS device, and listened to
instructions, if any, from Mackeivicz, who translated Psareas’ instructions from
English to Portuguese. (Tr. at 263, 353, 737, 1008, 1013.) Accounts differed on
whether the instructions included safety – but the weight of the evidence
establishes that the painters experienced and expressed safety concerns on the
worksite. Regarding the power lines, painters reported that if they got too
close to the power lines the hair on their skin would stand up. (Tr. at
252-253; C-31 at 84.) Regarding their PFAS device, all of the painters in this
case testified that they had concerns about their PFAS device operating
correctly and frequently brought concerns regarding their PFAS device to the
attention of supervisor Psareas and foreman Mackeivicz. The painters were
concerned about their paint-covered “pelican” clips because the paint would
cause the clips to jam and not close all the way. (Tr. at 144; 279-280, 347-348, 701-702; Ex.
C-30 at 58-60; Ex. C-31 at 79-81.) Most of the time, the request for a new PFAS
was rejected and the painters were instead told to clean their PFAS device more
thoroughly. (Tr. at 279-280; Ex. C-30 at 58-60; Ex. C-31 at 79-81.)

Additionally, all of the painters, and the supervisors,
including Peter Vlahopoulos, testified that accepted uses on the Tower
Maintenance worksite of the PFAS device included: (1) wrapping the lanyard
around a cross-bracing and attaching the clip back onto the lanyard itself, and
(2) clipping onto step bolts. (Tr. at 272-274, 346-347, 703-704, 958, 990-991;
Exs. C-30 at 87-90, C-31 at 76-77, 109-111; Ex. R-50 at 37-38.) Sometimes, “on
rare occasions,” painters did not tie off at all when their PFAS device
prohibited them from reaching certain areas of the tower to paint. (Resp’t Br.
at 14; Exs. C-30 at 88-89; C-31 at 76.)

3.   Training

The training evidence in the record is illuminating,
revealing the employees who had received training, the type of training
received, and the employees who had not received any training. ( See
App’x B.) Elizabeth Vlahopoulos took construction courses at Baruch University
after high school, including estimating and construction management. (Tr. at
911-912.) According to Ms. Vlahopoulos, she is “a C3 of a NACE Inspector level
2,” meaning that she is authorized to inspect paint coatings, for example on a
bridge project. (Tr. at 912.) She has no degree in
electrical engineering or physics. (Tr. at 912.) Ms. Vlahopoulos also
testified:

Q: So you have no real formal
education in the field of electrical behavior, how electricity behaves;
correct?

A: I believe I have what I'm
required to have for painting, yes. If the requirements -- if I'm required to
have more at some point, I will get more.

(Tr. at 912.) The record shows that she attended a “C-5
Supervisor / Competent Person Refresher Training for Deleading of Industrial
Structures” training course on June 11, 2012. (Ex. C-22 at 14-16.)

Peter Vlahopoulos took a certified climbing course, and
also attended the “C-5 Supervisor / Competent Person Refresher Training for
Deleading of Industrial Structures” training course on June 11, 2012. (Tr. at
991; Ex. C-22 at 14-15, 18.) He did not personally provide training to any
employee on the Edison project at issue. (Tr. at 941.)

Supervisor Psareas and foreman Mackeivicz took training
courses in the following subject areas in the spring of 2012 and in August
2012: Fall Protection, OSHA 10, Electrical Arc Flash Safety, Authorized
Climber, and Sub Station Awareness. (Tr. at 1013; Exs. C-2; C-22 at 5-7; C-23
at 4-6; C-24 at 4, 5-13, 86, 91-99, 107). In addition, foreman Mackeivicz took
Tower Rescue & Competent Climber training (Ex. C-24 at 108-121). After the
October 25, 2012 fatal accident supervisor Psareas took a Competent Tower
Climber / Rescuer Training in November 2012. Supervisor Psareas also previously
took the following training courses: Boots on the Roof (2009), OSHA 10 (2010),
Lead Contractor and Lead Supervisor (1996). (Ex. R-38; Ex. R-50 at 19-24.)
Neither supervisor Psareas nor foreman Mackeivicz personally trained or checked
previous training certificates of the Tower Maintenance painters for the Edison
project. (Tr. at 335-336; 688-689.)

With regard to JV, RS, Fonseca Alves, and Da Silva, the
four workers central to this case, the record shows the following training
occurred in the spring – fall of 2012: Fall Protection (Fonseca Alves, Da
Silva, RS), OSHA 10 (Fonseca Alves), Electrical Arc Flash Safety (Fonseca
Alves), and Authorized Climber (Fonseca Alves.) (Exs. C-22, 23, 24.) The record does not
contain any training certificates for the deceased JV.

The parties stipulated that on October 25, 2012, the day of
JV’s electrocution and RS’ fall, Tower Maintenance employed at least
twenty-five employees. (Ex. J-1 ¶¶ 11, 19.) The parties further stipulated that
eleven employees were employed that day engaged in tower painting work on the
PSE&G transmission tower painting project. (Ex. J-1 ¶¶ 17 through 27; App’x B.) Of
those, the record reveals that six of the tower painters had received no
training from Respondent. The record does not contain any training certificates
for Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo, Domingos Da Silva,
Euflates Passos, or JV. (Ex. J-1 ¶¶ 21-23 and 25-27.)

4.   The Accident

The painting crew for a single tower consisted of
approximately three to six painters and one supervisor. (Tr. at 255.) On
October 25, 2012, there were two crews. (Tr. at 705-706.) After the morning
meeting was over, the crews loaded up into a truck and headed over to a tower.
(Tr. at 264.) Supervisor Psareas’ crew went to the tower at issue. Foreman
Mackeivicz and his crew went to another tower about a mile away. (Tr. at 345.)

Once they got to the tower, Psareas’ crew waited until the
representative from PSE&G gave them permission to ascend the tower and
start painting. (Ex. C-30 at 70-71.) While they were waiting for Psareas to
talk with the PSE&G representative, the painters prepared their paint. Once
given permission, the painters ascended the tower to their designated
positions. The record establishes that the painters designated their positions
themselves. (Tr. at 264; Exs. C-30 at 70-71; C-31 at 93-97.) Psareas left the
worksite to make a telephone call after two painters began ascending the tower,
“some of the guys were doing the floor,” and before the other painters started
ascending the tower. Psareas did not see the accident. (Tr. at 706.)

Psareas’ crew included the following painters positioned
from the top of the tower on down: Fonseca Alves, JV, Da Silva, and RS. ( See,
e.g. , Ex. C-30 at 71; Ex. 14B). According to OSHA Compliance Officer (CO)
Lonnia Simmons, she was told that JV was working at an approximate 70 feet
height and that RS was at a 40 feet height at the time of the accident. (Tr. at
151.) JV and Da Silva were stationed closest to each other. According to Da
Silva, he was sitting down inside the tower getting ready to paint when he
watched JV climb the ladder and step off to the other side within the tower
cage near the No. 3 power line. (Ex. C-30 at 75-76.) Da Silva turned his head,
and in a matter of seconds, heard a loud noise like a bomb. (Ex. C-30 at
85-87.) He then saw JV fall and hit RS, who was climbing below, according to Da
Silva. (Ex. C-30 at 85.) According to Fonseca Alves, JV followed him up the
step ladder. (Ex. C-31 at 100-101.) As he was getting off the ladder at his
designated location, JV asked Fonseca Alves what section to paint. (Ex. C-31 at
100-101.) Fonseca Alves then continued up ten step bolts, and then heard a loud
explosion. (Ex. C-31 at 98.) He did not recognize at first what happened, but
then he saw both JV and RS on the ground below. (Ex. C-31 at 98-99.) RS could
not recall the events leading up to the accident. (Tr. at 288-289.)

Fonseca Alves identified, in a photograph, a strip of green
paint, the color they were using that day, on the tower cage that JV had
painted. (Exs. 15C; C-31 at 106.) According to Fonseca Alves, the No. 3 power
line would have been 2 – 2 ½ feet from a painter’s back when he painted that
green strip. (Ex. C-31 at 108.)

5.   Post-Accident
Investigation

At 12:02 p.m. on October 25, 2012, the Edison police
department investigated the accident to ensure that it was an accident and not
a crime. (Tr. at 73-74.) Upon arrival, the police department investigator saw
emergency vehicles from the police department, fire department, the New Jersey
state police, and emergency medical services. (Tr. at 75.) The investigator
spent forty minutes at the worksite and took photographs of the accident scene.
(Tr. at 78, 88; Exs. C-10, C-14, C-15, C-16.) He then collected safety
harnesses and took them back to the police department headquarters as evidence.
(Tr. at 86-87.) An autopsy performed on JV concluded that the cause of his
death was electrocution. (Ex. C-12 at 5; J-1 ¶ 14.)

As a result of a media referral, OSHA CO Simmons conducted
an investigation of the worksite. (Tr. at 113-114.) She arrived at the worksite
at 1:30 p.m. on the day of the accident. (Tr. at 114.) When she arrived, only
the PSE&G representative and two police officers were there. (Tr. at 115.)
Debris, including paint buckets, was on the ground. (Tr. at 115.) The Tower
Maintenance employees had been taken to the Edison police department to be
interviewed. (Tr. at 117.) CO Simmons spoke with Elizabeth and Peter
Vlahopoulos by telephone the following day, and eventually spoke with Nikolaos
Psareas and Robert Palermo. (Tr. at 119.) In June 2013, several months
after the October 2012 accident, CO Simmons went to the police department and
took pictures of the harnesses that had been taken into evidence on the day of
the accident. (Tr. at 171-172; Exs. C-17, C-18.)

Discussion

Were
Respondent’s employees “qualified”?

As discussed above, the threshold issue in this case is
whether Respondent’s employees were “qualified” persons to work on the tower at
issue here. For the following reasons, I find that the record evidence
establishes that these painters were not “qualified,” as defined in the cited
standards. Furthermore, I find that supervisor Psareas and foreman Mackeivicz
also were not “qualified.”

The term “qualified person” is defined in both subpart S at
29 C.F.R. § 1910.399, “Definitions applicable to this subpart,” and at 29
C.F.R. § 1910.269(x), “Definitions.” Subpart S defines the term
“[q]ualified person” as “[o]ne who has received training in and has
demonstrated skills and knowledge in the construction and operation of electric
equipment and installations and the hazards involved.” 29 C.F.R.
§ 1910.399. Section 1910.269 provides that a
“[q]ualified employee (qualified person) [is] one knowledgeable in the
construction and operation of the electric power generation, transmission, and
distribution equipment involved, along with the associated hazards.” 29 C.F.R.
§ 1910.269(x). I find that, under either definition, the
Secretary has established that painters RS, Da Silva, and Fonseca Alves, and
the deceased JV, were not qualified persons with regard to the electric
safety-related hazards involved with the electric transmission tower they were
painting on October 25, 2012.

The Secretary asked three of these employees questions
related to aspects of the qualifications of a “qualified person,” as defined in
both subpart S and § 1910.269. Both definitions require, at a minimum,
familiarity with “nominal voltage” and knowledge of “clearance distances /
minimum approach distances” with respect to a specified voltage. 29 C.F.R.
§ 1910.332(b)(3); 29 C.F.R. § 1910.269(a)(2)(ii). With regard to “nominal
voltage,” the Secretary asked RS, Da Silva, and Fonseca Alves whether they were
“familiar with the term nominal voltage,” and whether they knew how to
calculate the “nominal voltage” of an overhead electrical / transmission power
line or a circuit. (Tr. at 250-251; Ex. C-30 at 33; Ex. C-31 at
42-43.) None of them answered in the affirmative. ( Id .) The Secretary
also asked them if they knew what the “minimum approach distance” was for a 26
kilovolt power line. (Tr. at 252; Ex. C-30 at 35; Ex. C-31 at 45-46.) None of
them testified that they knew the answer. ( Id .) Da Silva testified that
he has never known the answer to that question. (Ex. C-30 at 35.) Da Silva
testified that he was told that the minimum approach distance for a 138
kilovolt power line was 6 feet, and that in any case, he always stayed within
“the box” and would never “get near” any power lines. (Ex. C-30 at 35-36.)
Fonseca Alves testified that he was told to stay at least 6 feet from any cable
on the arms of a power tower. (Ex. C-31 at 43-44.)

The answers to the Secretary’s questions establish that
painters RS, Da Silva, and Fonseca Alves lack the requisite familiarity with
regard to determining the nominal voltage of an exposed power line, as well as
the appropriate clearance distance / minimum approach distance for an exposed
26 kilovolt power line. 29 C.F.R. § 1910.332(b)(3); 29 C.F.R. § 1910.
269(a)(2)(ii). These painters therefore were not “qualified persons” at the
Tower Maintenance worksite on October 25, 2012.

With regard to JV, there is little evidence in the record
regarding his familiarity with “nominal voltage” or the requisite clearance
distance / minimum approach distance with respect to a given voltage. The
record, however, establishes that JV was never trained in this area. JV was
hired two weeks before the incident on October 25, 2012. (Tr. at 183.) Tower
Maintenance did not train JV during that two-week period. He was scheduled to
take training in November 2012. (Tr. at 183. See App’x B.) According to
the CO, Tower Maintenance alleged that JV presented them with a training certificate
from where he worked prior to joining Tower Maintenance before he was hired.
(Tr. at 183.) The certificate was not produced to the Secretary during this
proceeding because, according to Respondent, the record allegedly was lost
during Hurricane Sandy. (Tr. at 184; Resp’t Br. at 14.) Instead, Respondent
produced the names of the training providers it used to train its employees.
(Ex. C-6 at ¶ 9, Responses to Secretary’s Interrogatories.) All of the
training providers provided affidavits denying that they had any records that
they trained JV. (Exs. C-22, C-23, C-24; App’x B.)

Respondent also stated that “to ensure the adequacy
of training, the main office verifies the completion of training and completion
of new hire orientation documents.” (Ex. C-6 at ¶ 9, Responses to
Secretary’s Interrogatories.) Respondent claimed that foreman Mackeivicz and
supervisor Psareas were in charge of ensuring adequate training of its
employees. (Ex. C-6 at ¶ 5.) Respondent further claimed that “[t]he
competent person verifies [the new hire’s] work ability and knowledge directly
in the field.” (Ex. C-6 at ¶ 9.) However, both foreman Mackeivicz and
supervisor Psareas testified at the hearing (1) that they were not responsible
for safety training and (2) that they did not check the training certificates
of their employees. (Tr. at 335-336; 688-689.) This testimony not only
contradicts Respondent’s claim, but it also supports the Secretary’s claim that
Respondent did not check for JV’s training certificates before letting him work
on the transmission tower.

Based on this record evidence, the Secretary has
established a prima facie showing that JV was not trained or certified
in the work he was performing on the Tower Maintenance Edison project worksite.
Respondent failed to rebut this showing with any supportive evidence even
though it is in the best position to provide such evidence. Well Solutions,
Inc., Rig No. 30 , 17 BNA OSHC 1211, 1214-15 (No. 91-340, 1995)(holding that
the Secretary can rely on “best available evidence” to establish decedents’
lack of training and that slim showing of prima facie case is sufficient
absent rebuttal by party who has “full possession of all the facts.”)
Therefore, I find that the Secretary has established based on the evidence
above that JV was also not a “qualified person” as used in 29 C.F.R.
§ 1910.332(b)(3) and 29 C.F.R.§ 1910. 269(a)(2)(ii), because he was never
trained in the hazards under these standards.

Moreover, the record does not establish that supervisor
Psareas and foreman Mackeivicz had the requisite training and competence of a
“qualified person” as required under 29 C.F.R. § 1910. 269(a)(2)(ii).
Although their training certificates reflect recent training in fall protection
and arc flash (two courses directly applicable in this instance), both Psareas’
and Mackeivicz’s answers to questions at the hearing did not reflect competence
in these areas. ( See App’x B.) Their answers were non-committal or
evasive, and in some instances, self-incriminatory. For example, Psareas knew
that to work within 10 feet of an exposed 26 kV power line, a worker had to be
qualified. (Tr. at 743.) Yet, he passed off to PSE&G the responsibility of
determining whether a “qualified” person should be able to calculate nominal
voltage. (Tr. at 743.) Similarly, with Mackeivicz, he knew that the calculation
of a minimum approach distance depended on voltage, which could vary by the
tower. (Tr. at 349.) Yet, he did not know how to answer the following question:
“How do you calculate the nominal voltage of a power line?” (Tr. at 349.) The
responses by both Psareas and Mackeivicz, the supervisor and foreman on
Respondent’s Edison project, illustrate knowledge of what is required, but not
competence to be able to implement what is required. Therefore, I find that
supervisor Psareas and foreman Mackeivicz also were not qualified to paint the
Edison electric transmission tower supporting energized electric lines, raising
questions about whether they were suitable to supervise the unqualified
painters working on the Edison project tower on October 25, 2012.

Merits of the Alleged Violations

To prove a violation of an OSHA standard, the Secretary
must establish that (1) the cited standard applies, (2) there was a failure to
comply with the cited standard, (3) employees had access to the violative
condition, and (4) the employer knew or could have known of the condition with
the exercise of reasonable diligence. Astra Pharma. Prods. , 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981) aff’d in relevant part , 681 F.2d 691
(D.C. Cir. 1980).

I.    Serious
Citation 1, Item 1: Alleged Electrical Safety Violation

The Secretary alleges that Tower Maintenance violated 29
C.F.R. § 1910.333(c)(3)(i)(A)(1), which provides:

When an unqualified person
is working in an elevated position near overhead lines, the location shall be
such that the person and the longest conductive object he or she may contact
cannot come closer to any unguarded, energized overhead line than the following
distances: (1) for voltages to ground 50 kV or below – 10 ft.

29
C.F.R. § 1910.333(c)(3)(i)(A)(1). The Secretary claimed the following:

(a) Tower Maintenance
Corporation / Route 1 North Edison, NJ Site – Electric Transmission Tower –
Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower level
and 138 kV from the middle to the upper levels: on or about 10/25/2012, the
employer failed to ensure that unqualified employees who performed work from an
elevated position near overhead lines were located in a position such that the
employee, or any conductive object used by the employee, did not come within 10
feet of any unguarded, energized overhead line.

Amended Complaint at ¶ VII.

A.  The Secretary has established that 29 C.F.R.
§ 1910.333(c)(3)(i)(A)(1) applies

As noted above, the working conditions cited
for this alleged violation fall under  §1910.269. However, a threshold
issue is whether the Tower Maintenance painters were “qualified” employees as
defined in the cited standard. As discussed above, I find that the record evidence
establishes that the painters were not “qualified.” Therefore, the cited
standard under subpart S applies to the electrical safety-related hazards in
this case. These painters were obligated to keep at least a 10 foot distance
from the energized 26 kilovolt power line at issue in this case in compliance
with 29 C.F.R. § 1910.333(c)(3)(i)(A)(1).

Respondent claims that the citation should be vacated
because the Secretary has not established that any standard applies to the
facts of this case. (Resp’t Br. at 8.) With regard to the cited standard and
the standard cited in the alternative, Respondent claims that they “lack
clarity” and are “contradictory in terms of what behavior is required for
compliance.” (Resp’t Br. at 9.) Respondent seems to argue that the standards
are contradictory because each standard has a different approach distance for
“qualified persons.” (Resp’t Br. at 9-10.) Respondent’s unsupported argument in
this regard is rejected. First, as discussed above, the employees at issue here
are not “qualified persons,” so Respondent’s argument is not dispositive.
Second, § 1910.269 applies to qualified persons on transmission towers, a
situation that is more specific than the general provisions for “qualified
persons” set forth in subpart S. The standards are therefore not contradictory.

Respondent further argues that the entire citation should
be vacated because, as evidenced by the Secretary’s multiple amendments to the
citation, Respondent lacked fair notice and “[w]as left to guess for itself
which of three separate standards needed to be adhered to[.]” (Resp’t Br. at
11.) For the following reasons, Respondent’s arguments are rejected.  

First, Commission rules allow for filing alternative
claims. 29 C.F.R. § 2200.30(e). The Secretary followed the Commission’s
rules in filing an unopposed motion to amend the citation to allege alternative
claims under different standards, and the unopposed motion was approved after
finding no evidence of prejudice to Tower Maintenance. See Order
Granting the Secretary’s Motion to Amend the Citations and Complaint (July 31,
2014). Respondent subsequently stipulated that 29 C.F.R. Part 1910, as opposed
to the original cited standards under Part 1926, applied to the work that was
performed at the worksite at issue in this case. (Ex. J-1 at II ¶ 4.)

Second, as the Secretary points out, the applicability of
the cited standard depended on a factual issue, whether Tower Maintenance’s
employees were “qualified,” that was to be litigated. (Sec’y Reply Br. at 2.)
It was not because, as Respondent claims, “the government cannot decide upon
which regulation was violated[.]” (Resp’t Br. at 8.) And, as discussed above
regarding the amendments to this citation, the record shows that Respondent had
the opportunity and did fully litigate the factual and legal issues in the
Amended Complaint. Nat’l Realty & Constr. Co., Inc. v. OSHRC , 489
F.2d 1257, 1264 (D.C. Cir. 1973)(“So long as fair notice is afforded, an issue
litigated at an administrative hearing may be decided by the hearing agency
even though the formal pleadings did not squarely raise the issue.”).

Finally, it is noted that Respondent’s own HASP includes a
table of minimum approach distances that is almost identical to OSHA’s Table
R-6, which is incorporated by reference to the standard cited in the
alternative, i.e. , the standard that would apply if the evidence showed
that Tower Maintenance’s employees were “qualified.” 29 C.F.R.
§ 1910.269(l)(2). (Ex. C-3 at 19 “App’x A.”) Respondent’s due process
claim is rejected.

The Secretary has established that the cited standard, 29
C.F.R. § 1910.333(c)(3)(i)(A)(1), applies.

B.  The Secretary has
established that Respondent violated the cited standard

The Secretary argues that Respondent violated the cited
standard when its employees came within 10 feet of the energized power line
while painting the transmission tower. (Sec’y Br. at 26.) There is no evidence
in the record that shows the accident itself, or that establishes the precise
distance between any one Tower Maintenance employee and any one power line.
Respondent relies on this lack of evidence to claim that the Secretary failed
to establish a showing of noncompliance with the standard. Respondent claims
that the Secretary has failed to: (1) show “any evident causal link between the
violations charged and the proffered cause of the accident,” and (2) “provide a
reliable measurement” of the distance between JV and the energized line.
(Resp’t Br. at 8.) For the following reasons, Respondent’s arguments are
rejected.

With regard to Respondent’s first argument, that the
Secretary failed to show a causal link between the alleged violation and the
accident itself, the record does not support Respondent’s claim. Both the cited
standard and the standard cited in the alternative restrict not only an
employee from approaching too close to an energized power line, but also any
conductive object that is connected to that employee. See 29 C.F.R.
§ 1910.333(c)(3)(i)(A)(1) (“the location shall be such that the person and
the longest conductive object he or she may contact cannot come closer to
any unguarded, energized overhead line than the following distances: (1) for
voltages to ground 50 kV or below – 10 ft.)(emphasis added); 29 C.F.R.
§ 1910.269(l)(2) (“no employee approaches or takes any conductive
object closer to exposed energized parts than [2 feet 4 inches].” (emphasis
added)).

The Secretary’s expert opined that the most likely cause of
the electrocution was that JV brought the conductive paint he was using too
close to an energized power line. (Tr. at 620-625.) He came to this opinion
based on his review of the nature of JV’s burns from the autopsy report and the
nature of burns from JV’s PFAS device. He ruled out the possibility of direct
contact between JV and a power line because his burns were not severe enough.
(Tr. at 621.) He ruled out the possibility that JV’s lanyard contacted the power
line because he did not see any burn marks on the lanyard or lanyard clip. (Tr.
at 621.) Rather, JV had less severe burns on his thumb and another finger, and
a more severe burn on his thigh. (Tr. at 622.) Therefore, he concluded that an
arc, rather than direct contact, with the power line must have occurred, and it
must have occurred through the conductive paint. (Tr. at 622.) The electricity
then travelled to and through JV, and then grounded, through JV’s thigh, with
the tower, which JV was most probably straddling. (Tr. at 623-624.) The expert
ruled out the possibility that JV fell first and then fell into an energized
power line because JV’s burns were inconsistent with such a situation. His burn
injuries would most probably have been more numerous, “[t]here would be entry
and exit burns with every part that contacted the line[,]” and would have been
more severe, such as “amputations of at least a finger” through the direct
contact. (Tr. at 625-626.) Respondent does not dispute this portion of the expert’s
testimony.

Respondent, instead, claims that the Secretary’s expert
testified that “there was no maximum limit to the distance that the electrical
arc could have traveled from the circuit in question before coming to ground
via contact with JV,” seeking to argue that the expert’s opinion cannot
establish that JV was within the restricted distance to the energized power
line. (Resp’t Reply Br. at 3.) Respondent, however, misunderstands the expert’s
testimony. The expert testified, “[a]fter the arc is established,” there is no
limit to the distance “you can move through the ionized air.” (Tr. at 648.) The
cited standard seeks to prevent establishing the arc in the first place, which
according to the Secretary’s expert, unfortunately occurred here.

The Commission case, Par Electrical Contractors, Inc. ,
20 BNA OSHC 1624, 1626 (No. 99-1520, 2004) is similar to this case because it
involved an electrocution, no eyewitness to the actual incident, and a minimum
approach distance. In Par , the Commission used
“reasonable inferences from circumstantial evidence” and found a breach of a 2
foot approach distance based on the decedent’s wounds in the autopsy report.
Respondent claims that Par is not applicable here because Par’s
employees were not painters but were manually installing electrical wire only 2
and 1/4 inches from the approach distance’s outer limit. (Resp’t Reply Br. at
2.) Respondent, however, has not addressed the Secretary’s point: that the
Commission has previously relied on reasonable inferences based on
circumstantial evidence to find a violation of a minimum approach distance
based on the electrocuted decedent’s injuries. Additionally, Respondent does
not offer any evidence to contradict the Secretary’s expert’s opinion as to the
cause of the electrocution. It is reasonable to infer in this case that JV, and
a conductive object he was in contact with, came within the minimum approach
distance of 10 feet to the 26 kV transmission line because he was electrocuted.
This finding is also based on the expert
witness’ opinion regarding JV’s burn marks.

With regard to Respondent’s second argument, that the
Secretary failed to provide a reliable measurement of how close JV came to an
energized power line, the record also does not support Respondent’s claim.
Precise evidence is not required to establish a violation here. The Secretary
relies on the evidence in the record that establishes the range at which JV,
and a conductive object he was in contact with, could have been from the No. 3
power line, and it is less than 10 feet.

It is undisputed that Tower Maintenance’s employees climbed
up the tower using a ladder made of step bolts that ran up one leg of the tower
to the tower’s mid-level, and then the step bolts ran up the center line of the
cage to the very top of the tower. (Tr. at 138-139; Exs. C-14a; C-31 at 66.)
The record shows that the energized power line No. 3 was located above
mid-level, so that the step bolt ladder at the horizontal level of power line
No. 3 ran up the center line of the tower. (Ex. C-14a.) Power line No. 3 was 6
feet 5 and ½ inches from the centerline of the tower. (Tr. at 492.)

Therefore, any Tower Maintenance employee who scaled the
ladder came within the restricted distance when passing the No. 3 power line,
and therefore violated the 10 foot minimum approach distance. The record shows
that painter Fonseca Alves climbed up the step bolts past power line No. 3 on
his way to the top of the tower. (Ex. C-31 at 97, 100; Ex. C-14C.) JV also
dismounted the step bolt ladder and went to the side of the tower cage closest
to power line No. 3. (Ex. C-30 at 76, 80-81; 104; C-31 at 97-98.) At a minimum,
both employees Fonseca Alves and JV were 6 feet 5 and ½ inches from the power
line No. 3 while they were scaling the step ladder up past power line No. 3 –
well within the restricted distance, 10 feet, of the cited standard.

Moreover, from the center line of the tower body (which is
the furthest any employee could be, in the power line’s horizontal plane, from
a given power line due to the symmetric nature of the power lines attached to
either side of the electric transmission tower), most of the power lines were
less than 10 feet; two were 12 feet. (Tr. at 490-494; Exs. C-14F, C-40.) The
narrowest width of the tower cage was 4 feet 8 inches. (Tr. at 495; see also
Ex. C-40.) It follows that, from the edge of the tower cage, none of the power
lines were more than 10 feet. (Tr. at 495.) Therefore, any employee painting
the edge of the tower cage would have been closer than 10 feet, horizontally,
to any one of the power lines.

The record also supports a finding, based on circumstantial
evidence, that JV breached the 2 feet 4 inch restricted distance provided under
the standard cited in the alternative. Testimonial accounts place JV within the
tower cage near power line No. 3, the line that was closest to, and only 2-3
feet from, the edge of the tower cage, moments before the explosion. (Ex. C-30
at 71-81; Ex. C-31 at 100-101; Exs. 14B, 14C.) One witness, Fonseca Alves,
testified that JV had just finished painting a portion of the tower right
before the explosion. (Ex. C-31 at 105-109. See p. 24 n.29 supra .)
This testimony is supported by pictures in the record that show that the
vertical portion of the tower cage nearest to power line No. 3 was green, which
was the color that the painters were using that day. (Ex. C-15C; Tr. at 131
(painters previously primed the tower in red and were about to paint the tower
in green on the date of the accident)). Additionally, as described above, the
Secretary’s expert witness places JV, and a conductive object connected to him,
well within 10 feet, or even 2 feet, 4 inches, of the No. 3 power line. It is
therefore reasonable to infer that, while painting the edge of the tower, JV,
through inadvertent movement of his hands covered in conductive paint, breached
the 2 feet 4 inch approach distance when the No. 3 power line was only 2-3 feet
away.

The Secretary has established non-compliance.

C.  The Secretary has established that Tower
Maintenance’s employees had access to the violative condition

The Secretary argues that Tower
Maintenance’s employee, JV, had access to the violative condition because “the
location of his assigned work placed him in a position where inadvertent
movements could cause his person, or conductive objects connected to his
person, to approach within the relevant clearance distance[,]” whether it be 10
feet or 2 feet 4 inches. (Sec’y Br. at 31.) The Secretary claims that the fact
that JV was electrocuted establishes access to the violative condition.
Respondent does not address the Secretary’s claims that JV, or any other Tower
Maintenance employee, had access to the violative condition. Respondent’s main
assertion, if any, related to this prong of the Secretary’s burden of proof is
that, by failing to provide a precise measurement of JV’s distance to the power
line and also accounting for the possibility that an indeterminate amount of
“paint spill” caused the electrocution, the Secretary failed to establish that
JV had access to the violative condition. (Resp’t Reply Br. at 4.)

Respondent’s arguments are rejected. The fact that JV died
by electrocution is strong evidence that he was exposed to the hazard of
breaching the minimum approach distance, which takes into account inadvertent
movement. (Tr. at 593-620; Ex. C-29.) Also, as discussed above, all of the
power lines were located within 10 feet of the edge of the tower cage. As it is
undisputed that the painters were expected to paint the tower cage, including
the tower cage edges, then all of the painters were exposed to the hazard of
breaching the minimum approach distance in this case.

The Secretary has established exposure to the violative
condition.

D.  Tower Maintenance had knowledge that its
employees were approaching within the restricted distance to the power lines

The Secretary argues that Respondent had
actual and constructive knowledge that its employees were breaching the minimum
approach distance of the cited standard. (Sec’y Br. at 31.) Respondent claims
that it did not have knowledge of the alleged violations of this citation item
because “there was no need or even colorable reason for Tower Maintenance’s
employees to venture onto the arms of the transmission towers.” (Resp’t Br. at 11, 17.)

“The knowledge element of a violation does not require a
showing that the employer was actually aware that it was in violation of an
OSHA standard; rather it is established if the record shows that the employer
knew or should have known of the conditions constituting a violation.” Peterson
Bros. Steel Erection Co. , 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d ,
26 F.3d 573 (5th Cir. 1994). To establish whether the employer should have
known of the conditions constituting a violation, the Secretary must show
whether the employer:

constructively knew of
it--that is, the employer could have known with the exercise of reasonable
diligence. … Whether an employer was reasonably diligent involves a
consideration of several factors, including the employer’s obligation to have
adequate work rules and training programs, to adequately supervise employees,
to anticipate hazards to which employees may be exposed, and to take measures
to prevent the occurrence of violations.

Par ,
20 BNA OSHC at 1627 (citations omitted); see also N.Y. State Elec.
& Gas Corp. v. Sec'y of Labor , 88 F.3d 98, 108 (2d Cir. 1996) (holding
that Secretary bears the burden of proof regarding the issue of knowledge “even
when knowledge charged to an employer is predicated on its alleged inadequate
safety policy.”). “The knowledge of a supervisory employee may be imputed to
his or her employer.” Par , 20 BNA OSHC at 1627.

The cited standard was violated whenever an
unqualified Tower Maintenance employee scaled the step bolt ladder up past the
No. 3 power line because the No. 3 power line was only 6 feet 5 and ½ inches away
from the center line of the tower, where the ladder was located. The record
establishes that Tower Maintenance’s management knew, or could have known with
reasonable diligence, that its unqualified employees would be breaching the
minimum approach distance when they worked on the tower at issue.

The record establishes that Elizabeth
Vlahopoulos, Peter Vlahopoulos, and Nikolaos Psareas knew that the power lines
on the Edison tower were energized during the painting project. Elizabeth
Vlahopoulos bid on the project using a reduced estimate for the amount of paint
and labor because the arms of the tower, where the energized power lines were
located, were not to be painted. (Tr. at 431, 454-455, 1044; Ex. R-1.) As part
of its bid package submitted to PSE&G, Tower Maintenance provided the HASP
that would be followed for the project. (Ex. 478, 943-944; C-3.) The HASP
stated explicitly: “The Contractor shall perform all specified Work on
energized transmission lines and equipment. If the structure or line configuration
prohibits painting safely while lines are energized, the Contractor shall
notify the Field Representative 48 hours in advance so that an outage may be
scheduled.” (Ex. C-3 at 9. See Tr. at 952-953.) It is undisputed that no
one from Tower Maintenance notified PSE&G that the configuration of the
Edison tower, where the painters worked on October 25, 2012, prohibited Tower
Maintenance’s employees from painting it safely. (Tr. at 344, 431, 477.)

The record also establishes that Tower
Maintenance management knew that power line No. 3, the closest energized power
line to the side of the tower body, was energized. The representative of
PSE&G at the worksite testified that he had discussed with supervisor
Nikolaos Psareas the close proximity of power line No. 3, on either the tower
at the Edison location or a similar tower on a previous day, specifically:

Q: What was
the nature of that discussion?

A: I
suggested to Nick that the guys, once they climbed and got close to that circuit,
that they go inside the body of the tower and do their painting from inside the
body, so their backs aren't exposed to that circuit where they could
accidentally back into it.

(Tr. at 439, 458-59.) Consistent with the
representative’s testimony, supervisor Psareas testified that he conveyed these
instructions, by way of interpretation by foreman Mackeivicz, to the painters.
(Tr. at 737-738.)

Tower Maintenance does not claim that it did
not know that power line No. 3 was energized on the day of the accident.
Rather, Tower Maintenance asserts that “certain circuits on the transmission
towers were ‘idle’ circuits” and only “a limited number of the transmission towers
on the Edison project ha[d] the same ‘lay-out’ of circuits as the tower where
the incident occurred.” (Resp’t Br. at 13-14.) According to Respondent, these
facts show that the Secretary “is not entitled to a presumption that, simply
because an individual was an employee of Tower Maintenance (or even, simply
because he worked on the Edison Project) that individual came within the
minimum approach distance of an energized circuit.” (Resp’t Br. at 13.)

The evidence in the record specific to the No.
3 power line, and whether JV, or another unqualified Tower Maintenance employee
who scaled the step bolt ladder up past the No. 3 power line, is relevant to
whether the Secretary met his burden of proof. With regard to Tower
Maintenance’s claim that some of the circuits were “idle” on the day of the
accident, the PSE&G representative specifically testified that circuit Nos.
4, 5, and 6, not circuit No. 3, happened to be de-energized on the day of the
accident. (Tr. at 487-489.) He also testified that to Tower Maintenance’s
knowledge all of the circuits were energized, because that is what PSE&G
told Tower Maintenance throughout the project. (Tr. at 508-509.)

As an employer responsible for OSHA regulation
compliance, Tower Maintenance is responsible for “adequate work rules and
training programs, to adequately supervise employees, to anticipate hazards to
which employees may be exposed, and to take measures to prevent the occurrence
of violations.” Par , 20 BNA OSHC at 1627. The only way to anticipate the
minimum approach distance for each power line was to conduct an inspection of
the tower to determine the voltage of each power line. Id. Only then
could Tower Maintenance know the minimum approach distance for each power line.
This is especially true for energized power line No. 3, which was closest to
the edge of the tower and 26 kV. It is undisputed that no one from Tower
Maintenance did these inspections, despite this requirement in its own HASP.
(Tr. at 710, 949, 953; Ex. C-3 at 8-9.)

The testimony from project director Peter
Vlahopoulos and from supervisor and health and safety officer Nikolaos Psareas
indicates that there may have been confusion with respect to conducting the
tower inspections. Both seemed to suggest that they relied on PSE&G to tell
them it was safe to paint the tower. Project director Vlahopoulos testified:
“We don't inspect the actual tower. That's why the representative for PSE&G
is there, to make sure that the tower has been inspected by him and reported
back to his ‘glass tower,’ as they call it in Newark, which is their main
office. We're not electricians, we're painters.” (Tr. at 949.) Supervisor
Psareas testified:

Q: To work
on a tower within 10 feet of a power line, you have to be a qualified employee,
correct?

A: Yes.

Q: And to
be a qualified employee, you have to be able to calculate the nominal voltage,
correct?

A: No.
That's what PSE&G rep is there for.

Q: So to
work on a tower, you don't have to know the -- how to calculate the nominal
voltage?

A: I mean,
no, we have the PSE&G rep there. He will tell us it was good to climb. It
was, you know, that was the job he gave us. We got the clearance and we did
what we had to do.

(Tr. at 743.) Both of these statements are in
direct conflict with Respondent’s HASP, which provides that Tower Maintenance
would perform daily inspections of the worksite for compliance with the HASP as
well as with “OSHA.” (Ex. C-3 at 4-5, 8.) Even if there was some confusion
regarding this issue, project director Vlahopoulos and supervisor Psareas were
responsible for safety on the worksite, not PSE&G, and should have
inspected the tower to determine the voltages and locations of the energized
power lines, including power line No. 3, so as to determine the minimum
approach distances for their painters.

The
record also establishes that Tower Maintenance’s management should have known
that employees JV and Fonseca Alves were not “qualified” and, therefore, should
have maintained a 10 feet minimum approach distance from the 26 kV No. 3 power
line. With regard to JV’s qualifications, record evidence is devoid. Tower
Maintenance does not even claim that JV was “qualified.” Moreover, supervisor
Psareas’ testimony conflicts with foreman Mackeivicz’s testimony with regard to
who was in charge of checking JV’s qualifications. (Tr. at 335-336; 688-689.)
Psareas’ testimony also conflicts with the HASP, which states that Psareas is
responsible for reviewing training records to ensure OSHA compliance. (Ex. C-3
at 5.) With regard to JV specifically, Psareas “believed” based on
conversations with Mackeivicz that JV came from Morris Painting, but he did not
know what training JV had from Morris Painting. (Ex. R-50 at 54-56.) Instead, Psareas’
testimony reflects an assumption that JV was qualified:

Q: Did you
ever give instruction to the painters with respect to painting of the tower?

A: Did I
ever give instructions? Josimar [Mackeivicz] will -- I would talk to Josimar
and Josimar will be the one telling them exactly. And he'll be the one, you
know, what they would need to do in the tower. And if I -- if he wasn't, you
know, nearby or I will be explaining to them, but they all, from painting so
many towers, because they are all similar, you know, they all know how to do
it. It was a rhythm they followed.

(Tr. at 737.) Psareas’ reliance on an
assumption that his painters were qualified conflicts with his express duty and
responsibility under the HASP to ensure that his painters were qualified. (Ex.
C-3 at 5.)

With regard to Fonseca Alves, the record
establishes that Tower Maintenance should have known that he also was not
qualified. Even though Fonseca Alves attended an “Electrical Arc Flash Safety
Training” course with supervisor Psareas, the training was conducted in
English. (Ex. C-23 at 5; Ex. C-31 at 33-34, 40-42.) When asked how much English
does Fonseca Alves speak, Psareas testified “a very little bit.” (Tr. at
691-692.) He therefore should have known, in accordance with the HASP, to
follow up with Fonseca Alves to make sure he understood the training. (Ex. C-3
at 5.) Instead, Fonseca Alves testified that he did not fully understand
portions of the training due to the language barrier, and that Tower
Maintenance did not check to make sure he understood the training. (Ex. C-31 at
40-42.) As he testified: “They didn’t test us, just grab the belt – the bucket
and go to work.” (Ex. C-31 at 42.)

The Secretary has shown that Psareas had
constructive knowledge that his painters would be using their arms and hands,
covered in conductive paint, only 2-3 feet from an energized power line on the
Edison tower. Par , 20 BNA OSHC at 1626-1627. Psareas knew this type
of tower, where the No. 3 power line came within 2-3 feet of the edge of the
tower body, and he testified that he had been on a tower with a similar layout
approximately ten times previous to the tower at issue. (Tr. at 737.) Psareas
also knew that, to work within 10 feet of an energized power line, you have to
be a qualified employee. (Tr. at 743.) Psareas, however, never measured the
distance between power line No. 3 and the edge of the tower body nor the
distance between No. 3 and the center of the tower cage. (Tr. at 710.) Psareas
therefore had constructive knowledge of the violative conditions imposed on the
painters in this case, and this knowledge is imputable to Tower Maintenance. Par ,
20 BNA OSHC at 1626-1627.

The Secretary has also shown that the
painters’ breach of the minimum approach distance in this case was reasonably
foreseeable and therefore preventable by Tower Maintenance. Pa. Power &
Light Co. v. OSHRC, 737 F.2d 350, 357–58 (3d Cir. 1984) (holding that the
Secretary must show that the violative conduct was reasonably foreseeable and
thus preventable to establish a violation of a general safety standard…“The
courts of appeals have consistently held that the adequacy of a company's
safety program, broadly construed, is the key to determining whether an OSHA
violation was reasonably foreseeable and preventable . ”). Tower Maintenance’s
own HASP provided, for its employees, that the minimum approach distance to a
26 kV energized power line was 2 feet 4 inches. (Ex. C-3 at 19 “App’x A”). The
table referenced in the HASP [Exhibit C-3] contains the same information as
OSHA’s Table R-6, which is incorporated by reference to the standard cited in
the alternative, i.e. , the standard that would apply if the evidence
showed that Tower Maintenance’s employees were “qualified.” 29 C.F.R.
§ 1910.269(l)(2). This portion of the HASP reveals that Tower Maintenance
expected its painters, without reference to whether they were “qualified,” to
breach the 10 foot minimum approach distance of the cited standard.

Indeed, the painters on the Edison tower
breached the 10 foot minimum approach distance to energized power line No. 3 as
they passed it while scaling the ladder, or as they painted the tower body
right next to it. The tower at issue here was primed just two days prior to the
incident and it is undisputed that the employees scaled the ladder to get to
their painting positions. (Tr. at 1037-1038.) It is also undisputed that Tower
Maintenance expected the painters to paint the tower body, from which the No. 3
power line was only 2-3 feet. It is also undisputed that the paint, which
covered the painters and their painting mitts, was conductive. It was
reasonably foreseeable and preventable that the “unqualified” painters on the
Edison tower breached the 10 foot minimum approach distance to the No. 3 power
line.

The Secretary has established knowledge for
this citation item.

E.  Unpreventable
Employee Misconduct Defense

Respondent claims that it “adduced ample
evidence that the painters were instructed to maintain a safe distance from the
energized circuits, and to perform their painting from within ‘the box’ of the
transmission towers.” (Resp’t Br. at 17.) Respondent therefore claims that
“there was no need or even colorable reason [for JV] to venture onto the arms
of the transmission towers.” (Resp’t Br. at 17.) This claim is construed as an
unpreventable employee misconduct (UEM) defense.

After the Secretary has set forth a prima
facie case, the employer may set forth the UEM defense. N. Y. State
Elec. & Gas Corp. , 88 F.3d at 106. For this defense, the employer has
the burden to establish that: (1) the employer has established work rules
designed to prevent the violation; (2) it has adequately communicated those
rules to its employees; (3) it has taken steps to discover violations; and (4)
it has effectively enforced the rules when violations have been discovered. Precast
Servs. Inc. , 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995); see also Pa.
Power & Light Co. v. OSHRC , 737 F.2d at 357 (holding that “[i]n cases
where the Secretary proves that a company supervisor had knowledge of, or
participated in, conduct violating the Act, we do not quarrel with the logic of
requiring the company to come forward with some evidence that it has undertaken
reasonable safety precautions.”).

Respondent claims that it had a rule that no
employee was to paint the arms of a tower. Respondent also had a work rule in
Appendix A of its HASP that no employee would approach an energized 26 kV power
line within 2 feet 4 inches. (Ex. C-3 at 19 “App’x A”.) With respect to the No.
3 power line, which was 2-3 feet from the edge of the tower body, I find that
neither of these rules was adequate to prevent a violation. The cited standard
required that the painters stay 10 feet from the power line, not “2-3 feet” or
“2 feet 4 inches.” I also find that neither of these rules was communicated to
the painters adequately. The record shows that the HASP was never provided to
the painters – even foreman Mackeivicz had not seen it. The record also shows
evidence of instructions being lost in translation between supervisor Psareas,
who speaks no Portuguese, and the painters. Additionally, there is no evidence in the
record of how and whether Respondent enforced these rules. Finally, supervisor
Psareas left the worksite before the painters ascended the tower and was making
a telephone call a mile away when the accident occurred. In this instance,
supervisor Psareas did not take steps to discover a violation of its work rule
on the day of the accident, as he was not even on the worksite when the
accident occurred. Respondent has failed to establish the UEM defense for this
citation item.

Citation 1, Item 1 is affirmed.

F.  Characterization

The Secretary alleged a serious
violation of the cited standard. A violation is “serious” if there was a
substantial probability that death or serious physical harm could have resulted
from the violative condition. 29 U.S.C. § 666(k). The hazards associated with a
violation of the cited standard, or the standard cited in the alternative,
include amputations, burns, or as shown in this case, death by electrocution.
(Tr. at 618-619.) This citation item is properly characterized as serious.

I.    Serious,
Willful, Repeat Citation 2, Item 1: Alleged Fall Protection Violation

The Secretary alleges a violation of 29 C.F.R.
§§ 1910.269(g)(2)(iii) and (g)(2)(v). (Amended Complaint at ¶ VIII.)
Section 1910.269(g)(2)(iii) “Fall
Protection,” provides that “Body belts, safety straps, lanyards, lifelines, and
body harnesses shall be inspected before use each day to determine that the
equipment is in safe working condition. Defective equipment may not be used.”
Section 1910.269(g)(2)(v) provides in relevant part: “Fall arrest equipment …
shall be used by employees working at elevated locations more than 4 feet (1.2
m) above the ground on … towers[.]” The Secretary claims the following:

(a) Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower
level and 138 kV from the middle to the upper levels. The employer failed to
ensure that employees wore appropriate fall protection equipment and failed to
remove defective equipment from service. Employees performing work on an
electric transmission tower from elevated locations more than 4 feet above the
ground level were not protected from falls through the use of a functional fall
protection system on or about 10/25/2012. Employees were using lanyards with defective
snap hooks which were covered in paint and incapable of closing securely.
Employees were also required to perform work in elevated positions where their
personal fall arrest systems were not capable of providing fall protection.

Amended Complaint ¶ VIII.

A.  The
Secretary has established that the cited standards apply

As discussed above, § 1910.269, entitled
“Electric power generation, transmission, and distribution,” applies to “the
operation and maintenance of electric power generation, control, transformation,
transmission, and distribution lines and equipment.” 29 C.F.R.
§ 1910.269(a)(1)(i). The parties stipulated that Tower Maintenance “was
engaged in repainting an electric transmission tower” on the day of the
accident. (Ex. J-1 at ¶ 11.) The representative for PSE&G testified
that PSE&G considers painting as maintenance for its towers because, “it
extends the life of the structure.” (Tr. at 469.) See Pub. Utils. Maint.,
Inc. , 417 F. App’x 58. The record clearly discloses that Tower
Maintenance painters were working at heights substantially greater than 4 feet
above the ground on a transmission tower. The cited standards under § 1910.269
apply.

B.  The
Secretary has established that Tower Maintenance violated the cited standards

All of the painters at the hearing testified
that they had frequent concerns about their PFAS devices and that they brought
their concerns to supervisor Psareas and foreman Mackeivicz. (Tr. at 279-280;
Ex. C-30 at 58-60; Ex. C-31 at 79-81.) Supervisor Psareas confirmed that the
employees would bring their equipment to him in the mornings and that he knew
the paint would cause the harness clips to jam, rendering the PFAS defective.
(Tr. at 701-702.) But then he testified that he would “always replace them.”
(Tr. at 701-702.) This testimony is in direct conflict with the testimony of
all the painters who testified. I credit the painters’ testimony for the following
reasons.

Foreman Mackeivicz testified that each painter
was responsible, at the end of the day, to clean his PFAS device and to put it
away. (Tr. at 355.) Project director Peter Vlahopoulos admitted that dry paint
on a clip rendered the clip defective. (Tr. at 958.) The HASP even required
Tower Maintenance (Vlahopoulos and Psareas) to ensure that personal protective
equipment “is maintained in a sanitary and reliable condition.” (Ex. C-3 at 7.)
All of the supervisors on the worksite therefore knew of the risk of a PFAS
device being rendered defective during the project. However, none of the
supervisors claimed that they ensured that any of the PFAS devices worked – not
at the beginning of the workday and, notably, not during the workday. In fact, the
only mention in the record when a painter received a harness was in the morning
at the staging area. While the painters were on the tower or in between towers,
sometimes the painters were left unsupervised, as here, when supervisor Psareas
left the worksite to make a telephone call. I therefore credit the painters’
testimony regarding their defective equipment, and find that the defective
harnesses were not replaced and that the painters were working with defective
personal protective equipment in violation of § 1910.269(g)(2)(iii).

All of the painters, and the supervisors,
including Peter Vlahopoulos, testified that accepted uses on the Tower
Maintenance worksite of the PFAS device included: (1) wrapping the lanyard
around a cross-bracing and attaching the clip back onto the lanyard itself, and
(2) clipping onto step bolts. (Tr. at 272-274, 346-347, 703-704, 958; Exs. C-30
at 87-90, C-31 at 75-78, 109-111.) Use of the PFAS device in this manner is
non-compliant with OSHA regulations. As the OSHA CO noted, wrapping the lanyard
and clipping back onto the lanyard itself subjects the lanyard to abrasion and
tear, and undermines the weight capacity of the PFAS device. (Tr. at 181-182.)
The lanyard was therefore not a secure anchor point. (Sec’y Br. at 40.) Step
bolts also are not secure anchor points because the clip can slide off the end
of the step bolt. (Tr. at 163-164.) Because Tower Maintenance permitted its
painters to use PFAS devices in manners that were not compliant with OSHA
regulations, it follows that Tower Maintenance did not ensure that the painters
used fall arrest equipment on this worksite, in violation of
§ 1910.269(g)(2)(v). Furthermore, some of the painters testified that, at
certain points on a tower, it was impossible to use the PFAS device. In those
areas, the painters did not use the PFAS device at all, in direct violation of
the § 1910.269(g)(2)(v). (Ex. C-30 at 88-90; Ex. C-31 at 110-11.) Finally, the
fact that two employees fell is strong evidence that neither was actually using
a PFAS device, even though they were wearing them. The Secretary has
established non-compliance with the cited standards.

C.  The Secretary has established
that Tower Maintenance’s employees had access to the violative condition

The hazard associated with
the violations of the cited standards is falling from a height of 4 or more
feet. It is undisputed that all of the employees on the worksite worked at
heights greater than 4 feet. It has been found that the painters in this case worked
with defective PFAS devices, and used PFAS devices improperly. The Secretary
has established exposure.

D.  Tower Maintenance knew that its
employees were using defective PFAS devices and that the employees were not
using their PFAS devices properly

The Secretary has
established that Respondent had both actual and constructive knowledge of the
violative condition. It is undisputed that the paint in this project caused the
clips to jam, and that the painters would inform supervisor Psareas and foreman
Mackeivicz of their defective equipment. It is also undisputed that the remedy
was to clean the PFAS device, not to replace the PFAS device. While there is
evidence in the record that the painters frequently had issues with the PFAS
devices working properly, there is no evidence in the record of supervisor
Psareas or foreman Mackeivicz ensuring that the each PFAS device worked
properly. Respondent’s HASP required that the PFAS device be kept in a
“sanitary and reliable condition” and, notably, that the painters “would be
supervised continually by the HSO [health and safety officer Psareas] to ensure
compliance with [Respondent’s fall protection] policy.” (Ex. C-3 at 7, 11.)
Supervisor Psareas left the worksite before the painters ascended the tower,
and did not continually monitor their usage of fall protection on the day of
the accident. This evidence constitutes constructive knowledge of the violative
condition. Par , 20 BNA OSHC at 1626-1627 (holding that constructive
knowledge is based on showing of lack of reasonable diligence, which “involves
consideration of several factors, including the employer’s obligation to have
adequate work rules and training programs, to adequately supervise employees,
to anticipate hazards to which employees may be exposed, and to take measures
to prevent the occurrence of violations.”).

Supervisor Psareas and foreman Mackeivicz also
testified that they were aware that painters wrapped their PFAS device lanyard
around the tower beam and clipped it back onto itself, that the painters used
the clips on step bolts, and, most importantly in the case of Mackeivicz, that
he knew these methods of using the PFAS device were improper. (Tr. at 346-347,
703-704.) Both Psareas and Mackeivicz therefore had actual knowledge of the
violative condition. Project manager Peter Vlahopoulos also knew that the
painters used the step bolts to tie off. (Tr. at 958.) Peter Vlahopoulos,
Psareas and Mackeivicz are supervisors for Tower Maintenance. These supervisors
knew that their painters worked at great heights with potentially defective
PFAS devices and they knew of the improper ways the painters used the PFAS
devices. These supervisors therefore had actual knowledge of the violative
condition underlying this citation item. Peterson Bros. Steel Erection Co. ,
16 BNA OSHC at 1199.

Furthermore, while supervisor Psareas was not
on the worksite at the time of the accident, and therefore did not actually see
the state and use of the fall protection that the painters used on the Edison
tower, I find that the accident was foreseeable based on the lax manner in
which Tower Maintenance implemented its safety program. Pa. Power &
Light Co. v. OSHRC , 737 F.2d at 358 (“The courts of appeals have
consistently held that the adequacy of a company's safety program, broadly
construed, is the key to determining whether an OSHA violation was reasonably
foreseeable and preventable . ”). The record is replete with evidence
establishing how these supervisors did not enforce Tower Maintenance’s own
safety rules set forth in the HASP – they did not ensure during the workday
that the PFAS devices worked properly and they knowingly allowed the painters
to use their PFAS devices improperly. This lax safety rule enforcement supports
a finding that the painters’ violation of the cited standard at the Edison
worksite was reasonably foreseeable and preventable.

Finally, Respondent’s supervisors’ actual and
constructive knowledge is imputed to Tower Maintenance. Caterpillar, Inc. ,
17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d , 122 F.3d 437 (7th Cir.
1997) (holding that supervisory knowledge is imputable to the employer).
Knowledge for this citation item has been established.

Citation 2, Item 1 is affirmed.

E.  Characterization

1.   Serious

The Secretary has alleged a serious violation
of the cited standard. A violation is “serious” if there was a substantial
probability that death or serious physical harm could have resulted from the
violative condition. 29 U.S.C. § 666(k). The hazard associated with violating
this standard includes serious bodily harm or death, as evidenced by RS’
serious injuries. This violation is properly characterized as serious.

2.   Willful

“The hallmark of a willful violation is the
employer's state of mind at the time of the violation—an ‘intentional, knowing,
or voluntary disregard for the requirements of the Act or ... plain
indifference to employee safety.)’ ” Kaspar Wire Works, Inc. , 18 BNA
OSHC 2178, 2181 (No. 90-2775, 2000) (citation omitted), aff'd , 268 F.3d
1123 (D.C. Cir. 2001).

[I]t is not
enough for the Secretary to show that an employer was aware of conduct or
conditions constituting the alleged violation; such evidence is already
necessary to establish any violation .... A willful violation is differentiated
by heightened awareness of the illegality of the conduct or conditions and by a
state of mind of conscious disregard or plain indifference ....

Hern Iron Works, Inc. ,
16 BNA OSHC 1206, 1214 (No. 89-433, 1993); see also Bianchi Trison
Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (A willful violation of
the OSH Act “constitutes an act done voluntarily with either an intentional
disregard of, or plain indifference to, the OSH Act's requirements.”)(internal
quotes omitted).

There must be evidence that an employer knew of an applicable
standard or provision prohibiting the conduct or condition and consciously
disregarded the standard. Without such evidence of familiarity with the
standard's terms, there must be evidence of such reckless disregard for
employee safety or the requirements of the law generally that one can infer
that if the employer had known of the standard or provision, the employer would
not have cared that the conduct or conditions violated it.

Williams Enters. Inc. ,
13 BNA OSHC 1249, 1257 (No. 85-355, 1987). “[A]n employer's prior history of
violations, its awareness of the requirements of the standards, and its
knowledge of the existence of violative conditions are all relevant
considerations in determining whether a violation is willful in nature.” MJP
Constr. Co. , 19 BNA OSHC at 1648. The state of mind of a supervisory
employee ... may be imputed to the employer for purposes of finding that the
violation was willful.” Branham Sign Co. , 18 BNA OSHC 2132, 2134 (No.
98-752, 2000).

Heightened Awareness

The record establishes that Respondent had a
heightened awareness of the requirements of the cited standards and the
illegality of its conduct and conditions of its worksite. In 2010, at a
worksite in Macungie, Pennsylvania, Tower Maintenance had a previous fatality
related to a fall, and was cited by OSHA in that instance. Peter Vlahopoulos
was the jobsite project manager for Tower Maintenance at the Macungie worksite.
The fatally injured employee fell from a pole tower. At the time of the fatal
accident, the employee had been tied off on a “step bolt.” (Tr. at 958-962.)
The citation, which alleged violations of OSHA’s construction fall protection
standards, was settled, and the violations of the cited standards were
affirmed. (Ex. J-1 at ¶¶ 4-5; Exs. C-25-27.) As a
result of this citation, Elizabeth Vlahopoulos was aware of the OSHA
requirement that her employees “absolutely” must use fall protection at
elevated heights, that employers must inspect an employee’s PFAS device, and
that defective equipment should not be used, and that the previous violation
was “on [her] OSHA log and on [her] record.” (Tr. at 882, 917-918.) As a result
of this fatal accident, Respondent knew that employees must tie-off on secure
anchor points when working at heights. Respondent knew that “step bolts’ were
an inadequate anchor point. (Tr. 958-962, 988-991.)

Similarly, Peter Vlahopoulos participated in
previous OSHA discussions relating to violations of fall protection standards
at a worksite for a previous company. (Tr. 980-985; Exs. C-49 at 9, 11-13; C-50).
His knowledge of the requirements of fall protection travelled with him when he
began working for Respondent. MJP Constr. Co., Inc. , 19 BNA OSHC at 1648
(holding that supervisors can be “chargeable with knowledge of the requirements
of the standard based on their prior work experience, wherever that experience
originates.”).

Although supervisor Psareas did not know of
Respondent’s previous OSHA history (Ex. R-50 at 44), both he and foreman
Mackeivicz were trained in fall protection earlier that year. (Ex. C-22, p.
5-7; R-11; App’x B.) Both were aware of the methods the Tower Maintenance
painters used with their PFAS devices at the Edison worksite. Mackeivicz
testified that he knew that the methods that the painters used with their PFAS
devices were improper. (Tr. at 346-347. See also Tr. 703-704.)

The above evidence supports a finding that
Respondent had a heightened awareness of the fall protection requirements, the
violative conditions, and the illegality of its conduct on Edison project
worksite. MJP Constr. Co. , 19 BNA OSHC at 1648 (employer’s prior history
of violations, its awareness of the requirements of the standards, and its
knowledge of the existence of violative conditions are relevant to finding
willfulness); Branham Sign Co. , 18 BNA OSHC at 2134 (imputing
supervisor’s knowledge for willfulness).

Plain Indifference

The evidence in the record establishes that
Respondent was plainly indifferent to the safety of its painters with regard to
fall protection. The record establishes that Respondent systematically sent
painters, including JV, up towers without first taking a fall protection class
or even having any training certificates on file, and less than two years after
a similar fall fatality in Macungie. Although each painter was provided with a
PFAS device, the record shows that all supervisors were aware that the PFAS
devices were rendered ineffective frequently and yet no supervisor ensured that
the painters’ PFAS devices worked throughout the day. Additionally, all of the
supervisors knowingly disregarded the improper methods by which the painters
used their PFAS devices, including anchoring their PFAS devices to step bolts.
Respondent’s HASP required supervisor / health and safety officer Psareas to
continually monitor the painters and their use of fall protection, but Psareas
left the worksite on the day of the accident. No supervisor was on the worksite
to monitor compliance with fall protection on the day of the accident even
though Respondent knew that their painters would be working at great heights
with potentially ineffective PFAS devices and using them improperly.

Under these circumstances, the Secretary has
established that Respondent was plainly indifferent to its painters with regard
to fall protection. Elliot Constr. Corp. , 23 BNA OSHC 2110, 2116-17 (No.
07-1578, 2012) (finding plain indifference when supervisor knew from prior
experience and the day of the accident that carbon monoxide would be present
and yet failed to monitor for it); Adrian Constr. Co. , 7 BNA OSHC 1172,
1175 (No. 15414, 1979) (“A violation is willful if the evidence shows that the
employer ignored an obvious and grave danger . . . ”); Branham Sign Co. ,
18 BNA OSHC at 2134 (imputing supervisor’s knowledge for willfulness).

This citation item is properly characterized
as willful.

3.   Repeat

“A violation is repeated under section 17(a)
of the Act if, at the time of the alleged repeated violation, there was a
Commission final order against the same employer for a substantially similar
violation.” Potlatch Corp. , 7 BNA OSHC 1061, 1063 (No. 16183, 1979); see
also Reich v. D.M. Sabia Co. , 90 F.3d 854, 856 (3d Cir. 1996)
(adopting Potlatch test). “[T]he principal factor in determining whether
a violation is repeated is whether the two violations
resulted in substantially similar
hazards.” Amerisig Se., Inc. , 17 BNA OSHC 1659, 1661 (No. 93-1429,
1996). “ ‘[S]ubstantially similar’ must be defined sufficiently narrowly that
the citation for the first violation placed the employer on notice of the need
to take steps to prevent the second violation.” Caterpillar, Inc. v. Herman ,
154 F.3d 400, 403 (7th Cir. 1998).

The Secretary claims
that the predicate for the repeat characterization of Citation 2, Item 1,
alleging violations of 29 C.F.R. §§ 1910.269(g)(2)(iii) and (g)(2)(v), is
Tower Maintenance’s previous violation of OSHA’s construction fall protection
standards at 29 C.F.R. §§ 1926.501(b)(1) and 1926.502(d)(21). (Amended Complaint at VI, VIII; Sec’y Br. at
60.) Tower Maintenance’s violation of these standards, in connection with the
fatal accident in Macungie, Pennsylvania, became a final order of the
Commission on July 15, 2011. (Exs. J-1 at ¶¶ 4, 5; C-27.) However, §
1926.502(d)(21) was not included in the alleged violation description of
Citation 2, Item 1 in the Amended Complaint and, even though the parties
stipulated to Tower Maintenance’s prior violation of this standard, the
Secretary never amended the Complaint to add 29 C.F.R § 1926.502(d)(21) as
a predicate standard for the repeat characterization of Citation 2, Item 1 in
the instant case. This repeat characterization analysis is therefore limited to
29 C.F.R. §§ 1926.501(b)(1) as a predicate for this citation item.

Respondent claims that this citation item
cannot be characterized as repeat based on the previous violations because the
predicate standard was “separate and distinct” and has “substantive
differences” from the cited standards here. (Resp’t Br. at 15-16.) Respondent
further claims that the previous final order was not a violation of 29 C.F.R.
§ 1926.501(b)(1) “in any event” because it was reduced from a serious to
an other-than-serious violation in the settlement agreement. (Resp’t Br. at
16.) Respondent’s claims are rejected.

First, the settlement
agreement establishes that Tower Maintenance violated 29 C.F.R.
§ 1926.501(b)(1) as a serious violation. (Exs. C-25, C-27.) Second, the test for
determining substantial similarity for purposes of repeat characterization is
comparing the hazard, not the standards. Amerisig Se., Inc. , 17 BNA OSHC
at 1661. Both Tower Maintenance worksites – Macungie and Edison – revealed the
noncompliant use by employees of step-bolts as anchor points when working at
heights, which resulted in a fall hazard.

In Macungie, Tower Maintenance violated
standard 1926.501(b)(1) because one of its employees used a step bolt as
an anchor point for his PFAS, which caused him to fall to his death. (Tr.
958-62; Ex. J-1 3 (“On October 10, 2010 a Tower Maintenance Corporation
employee sustained fatal injuries after falling from a transmission tower at a
project located in Macungie, PA.”).) The alleged violation description for the
Macungie job site citation states the following:

Throughout
Work Area – Even though a proper fall arrest system was provided to the
employee, the employer did not ensure that the subject employee that fell was
protected from falls through the use of fall protection systems on or about
10/10/10.

(Ex. C-27 at 1.) Based on this language, Tower
Maintenance was on notice to ensure that its employees were wearing and using
fall protection systems, and specifically not tying off on inadequate anchor
points. Caterpillar, Inc. v. Herman , 154 F.3d at 403.

However, as noted above, all of the painters,
and the supervisors, including Peter Vlahopoulos, testified that accepted uses
on the Tower Maintenance worksite of the PFAS device included: (1) wrapping the
lanyard around a cross-bracing and attaching the clip back onto the lanyard
itself, and (2) clipping onto step bolts. (Tr. at 272-74, 346-47, 703-04, 958;
Exs. C-30 at 87-90; C-31 at 75-78, 109-111.) Supervisor Psareas and foreman
Mackeivicz testified that they were aware that painters wrapped their PFAS
device lanyard around the tower beam and clipped it back onto itself, that the
painters used the clips on step bolts, and, most importantly in the case of
Mackeivicz, that he knew that these methods of using the PFAS device were
improper. (Tr. at 346-347, 703-704.)

At both worksites, Macungie and Edison, Tower
Maintenance violated OSHA standards for fall protection and Tower Maintenance
employees fell and either died or sustained serious injuries due to
Respondent’s failure to comply with the fall protection standards. The hazard
for this citation item is substantially similar to the hazard for the predicate
citation item.

This
citation item is properly classified as repeat.

II.       Serious,
Repeat Citation 2, Item 2: Alleged Training Violation

As discussed above, the standards in this
citation item alleged to have been violated are affected by the finding that
Respondent’s painters were not “qualified.” Regarding Citation 2, Item 2, all
of the standards cited are therefore adjudicated in this section.

The Secretary alleges that Tower Maintenance
violated 29 C.F.R. §§ 1910.269(a)(2)(i) and (a)(2)(ii). (Amended Complaint at
¶ IX.) Section 1910.269(a)(2)(i) provides in relevant part:

Employees
shall be trained in and familiar with the safety-related work practices, safety
procedures, and other safety requirements in this section that pertain to their
respective job assignments. Employees shall also be trained in and familiar
with any other safety practices . . . that are not specifically addressed by
this section but that are related to their work and are necessary for their
safety.

29 C.F.R. § 1910.269(a)(2)(i). Section
1910.269(a)(2)(ii) provides in relevant part:

Qualified
employees shall also be trained and competent in: (A) The skills and techniques
necessary to distinguish exposed live parts from other parts of electric
equipment, (B) The skills and techniques necessary to determine the nominal
voltage of exposed live parts, (C) The minimum approach distances specified in
this section corresponding to the voltages to which the qualified employee will
be exposed, and (D) The proper use of the special precautionary techniques,
personal protective equipment, insulating and shielding materials, and
insulated tools for working on or near exposed energized parts of electric
equipment.

29 C.F.R. § 1910.269(a)(2)(ii). The
Secretary claims the following:

(a) Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV at the
lower level and 138 kV from the middle to the upper levels: on or about
10/25/2012, the employer did not ensure that employees were trained in the
safety-related work practices, procedures, and requirements associated with
painting energized transmission towers. Employees that were required to use
personal fall arrest systems were not trained in the proper use and operation
of personal fall arrest systems, and were not trained in the correct procedures
for maintaining and inspecting the personal fall arrest systems. The employer
also failed to ensure the effectiveness of training that was provided by
previous employers prior to allowing employees to perform work on transmission
towers.

(b) Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV at the
lower level and 138 kV from the middle to the upper levels: on or about
10/25/2012, the employer did not ensure that employees were trained in and
familiar with the safety-related work practices, safety procedures, and other
safety requirements that pertain to the work of re-painting energized electric
transmission towers. Employees were not trained in or informed about the safe
use of conductive tools and objects, including primer and paint.

(c) Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV at the
lower level and 138 kV from the middle to the upper levels: on or about
10/25/2012, the employer did not ensure that employees who were required to perform
work limited to qualified employees were trained and competent in the skills
and techniques necessary to determine the nominal voltage of exposed live parts
and the appropriate minimum approach distances.

Amended Complaint at ¶ IX.

The
Secretary also alleges violations of 29 C.F.R. §§ 1910.132(f) and
1910.332(b)(1) and (2). (Amended Complaint at ¶ IX.) Section 1910.132(f)
provides in relevant part:

The
employer shall provide training to each employee who is required by this
section to use PPE [personal protective equipment].

29 C.F.R. § 1910.132(f)(1). Section
1910.332(b)(1) provides in relevant part:

Content
of training – (1) Practices addressed in this standard . Employees shall be trained in and familiar with the
safety-related work practices required by §§ 1910.331 through 1910.335
that pertain to their respective job assignments.

29 C.F.R. § 1910.332(b)(1). Section
1910.332(b)(2) provides in relevant part:

Additional
requirements for unqualified persons .
Employees who are covered by paragraph (a) of this section but who are not
qualified persons shall also be trained in and familiar with any electrically
related safety practices not specifically addressed by §§ 1910.331 through
1910.335 but which are necessary for their safety.

29 C.F.R. § 1910.332(b)(2). The Secretary
claimed the following:

(a) Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV at the
lower level and 138 kV from the middle to the upper levels: on or about
10/25/2012, the employer did not ensure that employees were trained in and
familiar with the safety-related work practices and electrically related safety
practices associated with painting energized electric transmission towers.
Employees were not trained in or informed about the safe use of conductive
tools and objects, including primer and paint. Employees were required to
perform work near energized overhead power lines and were not informed about
the amount of voltage passing through the power lines and were not trained to
determine the appropriate distance to maintain from the energized power lines.

(b) Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV at the
lower level and 138 kV from the middle to the upper levels: on or about
10/25/2012, the employer did not ensure that each employee was trained in the
safety-related work practices associated with repainting energized electric
transmission towers. Employees who were required to use personal fall arrest
systems were not trained in the proper use, care, and operation of the personal
fall arrest systems, and were not trained in the correct procedures for caring
for and maintaining their personal fall arrest systems. The employer also
failed to ensure the effectiveness of training that was provided by previous
employers prior to allowing employees to perform work on transmission towers.

Amended Complaint at ¶ IX.

A.   The
Secretary has established that the cited standards apply

The Secretary alleges that
Tower Maintenance failed to train its employees in the areas of fall protection
and electrical safety. Both of these areas fall under the broadly written
language of all of the cited standards. Respondent sent unqualified employees,
and in some instances untrained employees, to work on the Edison tower on this
section 1910.269 project. To the extent that the section 1910.269 training
standards cited here regulate the training of persons, regardless of whether
they were qualified or unqualified, I find that section 1910.269 applies to the
working conditions in this case. S. Pan Servs. Co. , 25 BNA OSHC at 1085.

However, as the Secretary argues,
§§ 1910.332(b)(1) and (b)(2) cited in the alternative also apply in this
case due to the finding that the painters on the Edison project were
“unqualified” and the express requirement in §1910.269(a)(1)(iii) that “all
other applicable standards contained in this part 1910” also apply. (Sec’y Br.
at 61). See also Morrison-Knudsen Co. / Yonkers Contracting Co. ,
16 BNA OSHC 1105, 1108 (No. 88-572, 1993)(in regulatory context, explaining
that Commission construes “each part or section . . . in connection with every
other part or section so as to produce a harmonious whole”) (internal citations
omitted). Under these circumstances, §§ 1910.332(b)(1) and (b)(2) apply
and cover the training requirement gap that is formed due to the training
standards in § 1910.269 that do not cover “unqualified” persons.

B.   The
Secretary has established that Respondent violated 29 C.F.R.
§§ 1910.269(a)(2)(i) and (a)(2)(ii)

1.   Section
1910.269(a)(2)(i)

Section 1910.269(a)(2)(i) requires Tower
Maintenance painters to be trained in and familiar with “safety-related work
practices.” The Secretary claims that the use and maintenance of the PFAS
device was such a safety-related work practice on the Tower Maintenance
worksite and that Tower Maintenance failed to train its employees in this
practice. (Sec’y Br. at 63-68.) Respondent claims that the Secretary failed to
establish that its employees were not trained. (Resp’t Br. at 13-15; Resp’t
Reply Br. at 4-5.)

As discussed above regarding Citation 1, Item
1, the Secretary has established that JV as well as several other Respondent
painters was not trained in the hazards of the work they performed on the
Edison tower project. With regard specifically to fall protection,
the record shows that, on the day of the accident, two weeks after he had
already started working, JV had no fall protection training record on file at
any of the vendors Tower Maintenance relied upon to provide fall protection
training to its employees. (Tr. at 183-84; Exs. C-6 at ¶ 9; C-22;
C-23; C-24; Resp’t Br. at 14.) Indeed, JV was scheduled to take training in
November 2012. (Tr. at 183.) This evidence supports a finding that Tower
Maintenance failed to comply with this standard with regard to JV and his
necessary fall protection training. Well Solutions, Inc., Rig No. 30 , 17
BNA OSHC at 1214-15.

I also find that Respondent violated the
training standard with regard to RS. Although the record establishes that RS
was trained in fall protection on September 5, 2012, RS started working for
Tower Maintenance before this training, in August 2012. (Tr. at 114; Ex. C-22
at 22; App’x B.) The training RS attended was in English. His primary language
is Portuguese. Tr. at 231-232, 235). RS testified that he used the PFAS device
improperly by wrapping it around an iron beam and clipping back onto the cord,
or clipping onto the step bolts, or not clipping off at all. These methods are
all inconsistent uses with any fall protection training he received. (Tr. at
272-274.) This evidence discloses that Tower Maintenance did not ensure that RS
understood the fall protection training that was provided to him, in violation
of the cited standard.

Finally, there were no training certificates
on file for several painters engaged in tower painting work on the PSE&G
transmission tower painting project on October 25, 2012: Marcelo Leiroz,
Ederson Trizotte, Osias Figugiredo, Domingos Da Silva, Euflates Passos, and JV.
(Ex. J-1 at ¶¶ 17, 21 through 27.) As discussed above, I give the absence of
any training records for these workers great weight as Respondent was in the
best position to provide these training documents. Well Solutions, Inc., Rig
No. 30 , 17 BNA OSHC at 1214-15.

The Secretary has established non-compliance
with § 1910.269(a)(2)(i).

2.   Section
1910.269(a)(2)(ii)

Section 1910.269(a)(2)(ii) delineates the
training requirements for “qualified persons” on the Tower Maintenance
worksite. Only qualified employees should have been painting the tower cage in
areas near electric power lines above 50 volts, such as the No. 3 power line.
29 C.F.R. § 1910.269(l)(1). As discussed above, however, the record evidence
establishes that none of the painters had the familiarity or competence to be
considered a qualified person on the Tower Maintenance Edison worksite. It therefore follows that Tower Maintenance
did not train its painters, including JV who worked closest to the No. 3 power
line, in compliance with the requirements of this standard while working on the
Edison tower. Moreover, as discussed above, the record does not establish that
supervisor Psareas and foreman Mackeivicz had the requisite training and
competence as required under this standard.

The Secretary has established non-compliance
with § 1910.269(a)(2)(ii).

3.   Sections
1910.332(b)(1) and (2)

Sections 1910.332(b)(1) and (2) require, in
relevant part, that “unqualified” employees be trained in electrical “safety
related work practices” regarding potential hazards related to their job
assignments.

The Secretary claims that working with
conductive paint near energized power lines was a safety-related work practice
in which Tower Maintenance painters should have been trained. (Sec’y Br. at
68.) Using conductive paint on their hands brought the painters closer to the
minimum approach distance than if they did not use conductive paint. This
hazard, covered under 29 C.F.R. § 1910.333(c)(3)(i)(A)(l), required
training so that the painters knew how to paint safely and knew the minimum
approach distance. As found above, however, JV as well as several other
painters had no electrical training before being sent to work on the Edison
tower in such close proximity to a 26 kV power line. Respondent directed its
painters to work on a project that only “qualified” persons were appropriately
trained and qualified to safely perform. As found above, none of the Tower
Maintenance painters working on the Edison tower, on October 25, 2012, were
qualified. Some did not even have basic training to work safely on the Edison
tower.

The Secretary has established non-compliance
with §§ 1910.332(b)(1) and (2).

A.   The
Secretary has established that JV had access to the violative condition

The record establishes that
JV, as well as several of Respondent’s other painters working on October 25,
2012, worked at a height of at least 60 feet and were required to wear a PFAS
device for the fall hazard to which they were exposed. JV and Marcelo Leiroz,
Ederson Trizotte, Osias Figugiredo, Domingos Da Silva, and Euflates Passos had
not been trained in fall protection. The record also establishes that on the
day of the accident, JV, as well as the other painters working on the Edison
tower, including RS, Fonseca Alves and Da Silva, were not trained as “qualified
persons.” Some of the Tower Maintenance painters working, on October 25, 2012,
on the PSE&G transmission tower painting project had no electrical training
at all, and were working where only a “qualified person” should have been
working – near areas of exposed, uninsulated power lines energized at more than
50 volts. 29 C.F.R. § 1910.269(l)(1).

The Secretary has established exposure for
this citation item. Bardav, Inc. , 24 BNA OSHC 2105, 2112 (No. 10-1055,
2014) (concluding that exposure is established for training citation item when
worker “engaged in excavation work without first receiving required training”)
citing Gen. Motors Corp ., 22 BNA OSHC 1019, 1030 (No. 91-2834E,
2007)(consolidated)(“finding it unreasonable to require that employee be
exposed to a hazard before requiring that he be trained to recognize and avoid
that hazard.”).

B.   Tower
Maintenance knew or should have known that its painters were not trained in
fall protection or electrical hazards and that its painters were not trained as
“qualified” persons

The evidence in the record establishes that
Respondent knew or should have known that JV, as well as several of
Respondent’s other painters working on October 25, 2012 were not trained in
fall protection or electrical hazards, and that they were not trained as
“qualified” persons to work on the Edison project. Respondent is in charge of
its training program and so it is in the best position to know who is trained
and who is not. Pressure Concrete Constr ., 15 BNA OSHC 2011, 2018 (No.
90-2668, 1992) (“[t]he fact that [the company] failed to train [employees] in
the recognition and avoidance of dangerous conditions establishes that it had
at least constructive knowledge of the inadequacy of its training program.”).
Even if JV, or any other painter, presented a training certificate to Tower
Maintenance before beginning work on the Edison project transmission tower,
Respondent’s duty to train was not obviated. Danis-Shook Joint Venture XXV
v. Sec'y of Labor , 319 F.3d 805, 811 (6th Cir. 2003) (“Employers cannot
count on employees' common sense and experience to preclude the need for
instructions.”). Knowledge has been established for this citation item.

Citation 2, Item 2 is affirmed.

C.    Characterization

1.   Serious

The Secretary alleges that this citation item
can be characterized as serious. (Sec’y Br. at 71.) A violation is “serious” if
there was a substantial probability that death or serious physical harm could
have resulted from the violative condition. 29 U.S.C. § 666(k). The evidence
shows that JV was electrocuted and fell at least 60 feet. JV was not trained in
fall protection or electrical hazards. JV was working in an area where only
trained “qualified persons” should have been working. Therefore, he was
untrained for the electrical hazards he faced. As a result of his lack of
training, he died. Compass Envtl., Inc. , 23 BNA OSHC 1132, 1136 (No.
06-1036, 2010), aff’d , 663 F.3d 1164 (10th Cir. 2011) (finding violation
serious because evidence showed that failure to provide training could, and
did, result in death).

This citation item is properly characterized
as serious regarding the violations of the following cited standards: 29 C.F.R.
§ 1910.269(a)(2)(i), 29 C.F.R. § 1910.269(a)(2)(ii), 29 C.F.R. §
1910.332(b)(1), and 29 C.F.R. § 1910.332(b)(2).

2.   Repeat

The Secretary also alleges that this citation
item can be characterized as repeat. (Sec’y Br. at 71.) As discussed above,
“[a] violation is repeated under section 17(a) of the Act if, at the time of
the alleged repeated violation, there was a Commission final order against the
same employer for a substantially similar violation.” Potlatch Corp. , 7
BNA OSHC at 1063. “[T]he principal factor in determining whether a violation is
repeated is whether the two violations resulted in substantially similar
hazards.” Amerisig Se., Inc. , 17 BNA OSHC at 1661.
“ ‘[S]ubstantially similar’ must be defined sufficiently narrowly that the
citation for the first violation placed the employer on notice of the need to
take steps to prevent the second violation.” Caterpillar, Inc. v. Herman ,
154 F.3d at 403.

To determine whether a violation is repeated
based on a previous violation of a different training standard, the Commission
compares the two training standards that were violated and the resulting
hazards. Capeway Roofing Sys., Inc. , 20 BNA OSHC 1331, 1345 (No.
00-1986, 2003) (comparing hazards that “two roofers were not trained to
recognize and avoid” to hold that they were “largely the same,” resulting in a
repeat characterization.)

The Secretary claims that the predicate for
the repeat characterization of this citation item is Respondent’s previous
violation of a fall protection training standard found at 29 C.F.R.
§ 1926.503(b)(1), which the parties stipulated became a final order of the
Commission on July 15, 2011. (Amended Complaint at ¶ VI; Sec’y Br.
at 71; Ex. J-1 at ¶ 6.) Tower Maintenance’s violation of this standard
became a final order of the Commission as a result of the fatal accident in
Macungie, Pennsylvania. (Exs. J-1 at ¶¶ 4, 6; Ex. C-27.) Respondent
claims that the previous violation of section 1926.503(b)(1) cannot be used as
a predicate for a repeat characterization here because the two standards are
“distinct.” (Resp’t Br. at 16.)

In the settlement agreement for the predicate
standard, the alleged violation description was amended. (Ex. C-27.) As noted
above, it was grouped with the other violations and given the same violation
description:

Throughout Work Area – Even though a proper fall arrest
system was provided to the employee, the employer did not ensure that the
subject employee that fell was protected from falls through the use of fall
protection systems on or about 10/10/10.

(Ex. C-27 at 1.)

In the formal settlement agreement and, in the final order,
the violation of training standard 1926.503(b)(1) was affirmed, even though the
grouped violation description in the settlement agreement does not specifically
mention training.

The circumstance that led to the previous
training violation was, as the Secretary points out, nearly identical to the
circumstance here: an employee fell and died as a result of the fall. (Sec’y
Br. at 72; Ex. J-1 at ¶ 3.) In Macungie, Respondent was cited for
violating a training standard that required Respondent to “verify compliance”
with a fall protection training program. 29 C.F.R. § 1926.503(b)(1). By
not verifying compliance with a fall protection training requirement,
Respondent did not ensure that its employees were trained in fall protection.
As a result, one of Tower Maintenance’s employees at the Macungie worksite
attached to a step bolt and fell, and died as a result of that fall. Respondent
was therefore on notice that it had to verify that its painters were trained in
fall protection.

In the instant case, regarding the Edison
transmission tower painting project, Respondent sent several employees to work
at great heights on electric transmission towers without certification of that
they had received fall protection training. ( See App’x B.) It was
accepted by top management that a routine way to attach or anchor a PFAS was to
use a step bolt, which is an improper method of fall protection. Additionally,
both JV and RS fell from great heights. RS suffered serious bodily injury as a
result of his fall. Respondent does not deny that the resulting hazard from the
violations of these different standards was the same: a fall from a great
height that resulted in death or serious bodily injury. (Resp’t Br. at 16-17.)

This citation item regarding the violation of
cited standard 1910.269(a)(2)(1) is properly characterized as repeat.

Penalties

“Section 17(j) of the [OSH] Act, 29 U.S.C. §
666(j), requires that when assessing penalties, the Commission must give ‘due
consideration’ to four criteria: the size of the employer's business, gravity
of the violation, good faith, and prior history of violations.” Hern Iron
Works, Inc. , 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). When determining
gravity, typically the most important factor, the Commission considers the
number of exposed employees, the duration of their exposure, whether
precautions could have been taken against injury, and the likelihood of injury.
Id. When evaluating good faith:

[t]he Commission
focuses on a number of factors relating to the employer's actions, ‘including
the employer's safety and health program and its commitment to assuring safe
and healthful working conditions[,]’ in determining whether an employer's
overall efforts to comply with the OSH Act and minimize any harm from the
violations merit a penalty reduction.

Monroe Drywall Constr., Inc. , 24 BNA OSHC 1209, 1211 (No. 12-0379, 2013) (citations
omitted). The Commission is the “final arbiter” of penalties. Hern Iron
Works, 16 BNA OSHC at 1622 (citation omitted).

For serious Citation 1, Item 1, the Secretary
proposed the maximum statutory penalty of $7,000. 29 U.S.C. § 666(b). For
willful Citation 2, Item 1, the Secretary initially proposed a penalty of
$46,200 in the Amended Complaint, however, the Secretary now claims that the
maximum statutory penalty of $70,000 should be assessed for this citation item.
(Amended Citation at ¶ VIII; Sec’y Br. at 81.) For serious / repeat
Citation 2, Item 2, the Secretary proposed a penalty of $14,000. For the
following reasons, I find the Secretary’s proposed penalties appropriate.

While Respondent has few permanent employees,
and relatively few seasonal employees, the gravity for each of the violations
is high. All of the painters who testified worked at great heights while using
defective fall protection and, at times, working without fall protection. No
Tower Maintenance painter working on the Edison tower, on October 25, 2012, was
a “qualified person,” but they all worked in areas restricted to work by
qualified persons only, exposing themselves to extreme hazards they were not
trained to even recognize. JV was electrocuted on the job, fell, and hit RS,
who suffered serious bodily injury as a result of his fall of 40 feet.

Respondent claims that it “attempted to comply
with its training and safety requirements in good faith.” (Resp’t Br. at 18.)
The evidence reveals otherwise. Although Respondent had a written safety
statement, it was only provided as part of a bid package to secure a job. It
was not provided to or posted for the painters to see. Foreman Mackeivicz had
never seen it. Supervisor Psareas, the safety supervisor, did not follow it –
he left the worksite, which was against Respondent’s safety policy, to make a
telephone call and was not on the worksite when the accident occurred.

Moreover, the record establishes that
Respondent’s management knowingly disregarded the unsafe, noncompliant, fall
protection methods its painters were using on the Edison transmission tower
painting project even
after the Macungie incident, which occurred only two years prior to the Edison
incident. Furthermore, the fact that there were absolutely no training
certificates on file for several painters who were working on the Edison
project towers on October 25, 2012, shows that Respondent has not learned from
its previous violations or that its actions were irrefutably reckless, and not
in good faith.

The Secretary’s proposed penalties for each
citation item are assessed as proposed.

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 made above. See Fed. R.
Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent
with this decision are denied.

ORDER

Based
on these findings of fact and conclusions of law, it is ordered that:

1)        Item 1 of
Citation 1, alleging a serious violation of 29 C.F.R.
§ 1910.333(c)(3)(i)(A)(1), is AFFIRMED and a penalty of $7,000 is
ASSESSED.

2)        Item
1 of Citation 2, alleging a willful violation of 29 C.F.R.
§§ 1910.269(g)(2)(iii) and (g)(2)(v), is AFFIRMED and a penalty of $70,000
is ASSESSED.

3)        Item
2 of Citation 2, alleging a repeat violation of 29 C.F.R. § 1910.269(a)(2)(i)
is AFFIRMED. Further, Item 2 of Citation 2, alleging serious violations of 29
C.F.R. §§  1910.269(a)(2)(ii); 1910.332(b)(1) and (b)(2), is also
AFFIRMED. A penalty of $14,000 is ASSESSED.

/s/ Carol A.
Baumerich

Carol A. Baumerich

Date:   May 16, 2016
                                    Judge,
OSHRC

Tower
Maintenance Corp.

Docket No.
13-0777

Decision
Appendices

Appendix A: Procedural
Background

The previous citation
allegations set out in detail in this appendix are provided to describe the
procedural background and to focus the analysis in the Decision and Order on
the standards in the Amended Complaint that are solely at issue now.

Alleged Violations in the
Initial Citation

In the initial
citation, issued on April 8, 2013, the Secretary alleged violations of OSHA’s
construction standards found at 29 C.F.R. Part 1926. The citation items were as
follows:

Citation1, Item 1 alleged a serious violation of 29 C.F.R.
§ 1926.416(a)(1), which states:

No employer
shall permit an employee to work in such proximity to any part of an electric
power circuit that the employee could contact the electric power circuit in the
course of work, unless the employee is protected against electric shock by
deenergizing the circuit and grounding it or by guarding it effectively by
insulation or other means.

29 C.F.R. § 1926.416(a)(1). The alleged violation
description states:

Tower
Maintenance Corporation / Route 1 North Edison, NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower
level and 138 kV from the middle to the upper levels: Employee(s) were not
protected from contact with electrical line(s) while performing a painting
operation on or about 10/25/2012.

Ex. C-4. The Secretary proposed a
penalty of $7,000 for this citation item.

Citation 2, Item 1 alleged a repeat violation of 29 C.F.R. § 1926.501(b)(1),
which states:

Each
employee on a walking / working surface 6 feet (1.8 meters) or more above lower
levels was not protected from falling by a guardrail system, safety net system,
or personal fall arrest system.

29 C.F.R. § 1926.501(b)(1). The alleged violation
description states:

Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower
level and 138 kV from the middle to the upper levels. The employees were not
protected from falls through the use of a fall protection system on or about
10/25/2012.

Tower
Maintenance Corporation was previously cited for a violation of this
Occupational Safety and Health Standard or its equivalent, 1926.501(b)(1),
which is contained in OSHA Inspection Number 314720780, Citation 1, Item Number
2, and was affirmed as a final order on July 15, 2011, with respect to a
workplace located at 456 Glen Cove Ave., Seacliff, NY 11579.

Ex. C-4. The Secretary proposed a
$14,000 penalty for this citation item.

Citation 2, Item 2 alleged a repeat violation of 29 C.F.R. § 1926.503(b)(1),
which states:

Where the
employer relies on training conducted by another employer or completed prior to
the effective date of this section paragraph (a), the employer did not verify
compliance with this section by preparing a written certification record that
indicate[s] the date the employer determined the prior training was adequate.

29 C.F.R. § 1926.503(b)(1). The alleged violation
description states:

Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower
level and 138 kV from the middle to the upper levels:

1 – The
employer did not evaluate and /or maintain records to indicate that

(a)        The training
provided by previous employer(s) and /or training contractor(s) was done prior
to allowing employees to perform work (specifically on transmission towers)

(b)        To ensure the
effectiveness of that training and that the employee(s) has the knowledge and
skills needed to perform the operation safely.

Tower
Maintenance Corporation was previously cited for a violation of this
Occupational Safety and Health Standard or its equivalent, 1926.503(b)(1),
which is contained in OSHA Inspection Number 314720780, Citation 1, Item Number
4(a), and was affirmed as a final order on July 15, 2011, with respect to a
workplace located at 456 Glen Cove Ave., Seacliff, NY 11579.

Ex. C-4. The Secretary proposed a $14,000 penalty for this
citation item.

Respondent
filed its timely Notice of Contest to this citation on April 12, 2013.

Alleged Violations in the
Initial Complaint

In the initial complaint,
filed on August 2, 2013, the Secretary amended the citation items to allege
violations of other OSHA electrical safety standards, fall protection
standards, and training standards, some of which fell under OSHA’s standards
for “Electric Power Generation, Transmission, and Distribution,” found in 29
C.F.R. Part 1910. Among other amendments, the Secretary amended the
characterization of Citation 2, Item 1 to a “willful,” in addition to being a
“repeat,” violation. The Complaint increased the total proposed penalty to
$67,200.

Citation1, Item 1 was amended to allege a serious violation of 29 C.F.R.
§ 1926.416(a)(1) and, in the alternative 29 C.F.R. § 1910.269(l)(2), which
states:

The
employer shall ensure that no employee approaches or takes any conductive
object closer to exposed energized parts than the minimum approach distance set
forth in this standard.

29 C.F.R. § 1910.269(l)(2). The alleged violation
description states:

Tower
Maintenance Corporation / Route 1 North Edison, NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower
level and 138 kV from the middle to the upper levels: the employer failed to
ensure that no employee approached within 3 feet, 7 inches, of exposed
energized electrical lines while performing a painting operation on or about
10/25/2012.

Complaint at ¶ VII. The Secretary did not amend the
proposed a penalty of $7,000 for this citation item.

Citation 2, Item 1 was amended to allege a serious/repeat/willful violation
of 29 C.F.R. §§ 1926.28(a) and 1926.501(b)(1), or, in the
alternative , that the cited conduct violated 29 C.F.R.
§ 1910.269(g)(2). According to the Complaint, sections 1926.28(a) and
1926.501(b)(1) provide that:

The
employer failed to ensure that each employee on a walking / working surface 6
feet (1.8 meters) or more above lower levels was protected from falling by a
guardrail system, safety net system, or personal fall arrest system.

Complaint at ¶ VIII. The alleged violation description
states:

Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower
level and 138 kV from the middle to the upper levels. The employer failed to
ensure that employees wore appropriate fall protection equipment. The employees
were not protected from falls through the use of a functional fall protection
system on or about 10/25/2012. Employees were using lanyards with defective D
rings which were covered with paint and incapable of closing securely.

Complaint at ¶ VIII. The Secretary amended the
proposed penalty for this citation item from $14,000 to $46,200.

Citation
2, Item 2 was amended to allege alleged a serious/repeat violation of 29
C.F.R. § 1926.503(b)(1), and, in the alternative 29 C.F.R. §
1910.269(a)(2), which provides:

Employees
shall be trained in and familiar with the safety-related work practices, safety
procedures, and other safety requirements in this section that pertain to their
respective job assignments.

Complaint at ¶ IX. The alleged
violation description states:

Tower
Maintenance Corporation / Route 1 North Edison NJ Site – Electric Transmission
Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV at the
lower level and 138 kV from the middle to the upper levels: the employer did
not ensure that employees were trained in the safety-related work practices,
procedures, and requirements associated with painting energized transmission
towers.

Complaint at ¶ IX. The Secretary did not amend the
proposed $14,000 penalty for this citation item.

Respondent filed its Answer
to the Complaint on August 19, 2013. In its Answer to this initial Complaint,
Respondent denied the specific allegations and asserted the following
affirmative defenses, among others: (1) excessive penalty in light of the small
size of the employer, (2) all of the citations were not issued with “reasonable
promptness,” (3) the violations, if any, were non-serious, (4) Respondent did
in fact have an “adequate safety program run by knowledgeable supervisory
personnel” for the alleged training violation, (5) “training provided by
previous employer(s) and/or third party(s) and/or training contractor(s) was
done prior to allowing employees to perform work” for the alleged training
violation, (6) “Respondent ensured the effectiveness of training and that the
employee(s) has the knowledge and skills needed to perform the operations
safely” for the alleged training violation, (7) unpreventable employee misconduct
for the alleged training violation, (8) unpreventable employee misconduct
defense for the alleged fall protection violation, (9) impossibility or
infeasibility for the alleged fall protection violation, (10) unpreventable
third party / owner misconduct for the alleged electrical violation, (11)
unforeseeability for the alleged electrical violation, (12) unpreventable
employee misconduct for the alleged electrical violation, (13) “third-party
and/or owner assured that Respondent’s employees would not come into contact
with energized electrical lines in the course of their work and, therefore,
Respondent did exercise reasonable diligence to ensure” compliance with the
alleged electrical standard, (14) impossibility or infeasibility for the
alleged electrical violation, and (15) vindictive prosecution by the Secretary.
Answer to Initial Complaint at ¶¶ IV-XI, XIII-XXVII. 

Appendix B – Tower Maintenance Employee and Supervisor
Training Records

On
October 25, 2012, Tower Maintenance employed at least twenty-five employees.
(Ex. J-1 ¶ 9). Tower Maintenance was engaged in repainting an electric
transmission tower located at Route 1 North in Edison, New Jersey. (Ex. J-1 ¶
11).

On
October 25, 2012, the following Tower Maintenance employees were employed and
engaged in tower painting work on the PSE&G transmission tower painting
project: Alessandro De Almeida, Alan Kedes Fonseca Alves, Marcelo Silva, RS,
Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo, Caio Resende, Domingos Da
Silva, Euflates Passos, and JV. (Ex. J-1 ¶¶ 17 through 27). It is undisputed
that Nikolaos Psareas and Josimar Mackeivicz also worked on the Edison project
on October 25, 2012. A summary of their training records follows.

Ex. J- 1

Name

Training - CCS Consulting Services, Inc., between 01/01/12 –
10/25/12. Ex. C-22

Training – The Jacman Group, between 01/01/12-10/25/12.

Ex. C-23.

Training – Communications Industry Training and Certification
Academy, LLC (CITCA), between 01/01/12-12/31/12. Ex. C-24.

PSE & G

Ex. C-2

¶
17

Alessandro De Almeida

C-22, p. 21

Fall Protection, Fall Arrest
Systems, & Fall Hazard Awareness Training – 09/05/12 [Alejandro Almieda]

C-23,
p. 2 - none

C-24, p. 3 - none

[Allesandro De Almeida]

None

¶ 18

Alan Fonseca [Alves] – See
Decision n.13.

C- 22, p. 5, 11; R-11

Alan Kedis – Fall Protection
Training 04/03/12.

C-22, p. 12; R-11

OSHA 10 – Hour Training Course
– 04/04/12.

C-23, p. 4, 5, 9

[Alan Kedis Fonseca]

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

C-24, p. 92, 100-107.

[Alan Kedes Fonseca Alves]

Authorized Climber – 03/26/12.

None

¶
19

Marcelo
Silva

C-22, p. 20

Fall Protection, Fall Arrest
Systems, & Fall Hazard Awareness Training – 09/05/12.

C-23,
p. 2 - none

C-24, p. 3 - none

None

¶
20

RS

C-22, p. 22

Fall Protection, Fall Arrest
Systems, & Fall Hazard Awareness Training – 09/05/12.

C-23,
p. 2 - none

C-24, p. 3 - none

None

¶
21

Marcelo Leiroz

C-22,
p. 3 - none

C-23,
p. 3 - none

C-24, p. 3 - none

None

¶
22

Ederson Trizotte

C-22,
p. 3 - none

C-23,
p. 3 - none

C-24, p. 3 - none

None

¶
23

Osias Figugiredo

C-22,
p. 3 - none

C-23,
p. 3 - none

C-24, p. 3 - none

None

¶
24

Caio Resende

C-22,
p. 3 - none

C-23,
p. 3 - none

C-24, p. 4, 32-40, 91

Authorized Climber – 08/07/12.

[Caio Nunes Resende]

C-2

Sub Station Awareness

08/02/12

¶
25

Domingos Da Silva

C-22,
p. 3 - none

C-23,
p. 3 - none

C-24, p. 3 - none

None

¶
26

Euflates Passos

C-22,
p. 3 - none

C-23,
p. 3 - none

C-24, p. 3 - none

None

¶ 27

JV

C-22, p. 3 - none

C-23,
p. 3 - none

C-24, p. 3 - none

None

Josimar Mackeivicz

C- 22, p. 5, 7; R-11

Fall Protection Training
04/03/12.

C-22, p. 12; R-11

OSHA 10 – Hour Training Course
– 04/04/12.

C-23, p. 4, 5, 6

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

C-24, p. 92, 93-99, 107.

Authorized Climber – 03/26/12.

C-24, p. 108 - 121

Tower Rescue / Competent Climber – 03/27/12 – 03/29/12.

C-2

Sub Station Awareness

08/02/12

Nikolaos Psareas

C- 22, p. 5, 6; R-11; R-38.

Fall Protection Training
04/03/12.

C-22, p. 12; R-11; R-38.

OSHA 10 – Hour Training Course
– 04/04/12.

C-23, p. 4, 5; R-38.

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

C-24, p. 4, 5-13, 86, 91; R-38.

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12

Below is a summary of additional training
documents, in the record, for Tower Maintenance employees and supervisors.

Name

Training - CCS Consulting Services, Inc., (01/01/12 – 10/25/12).
Ex. C-22

Training – The Jacman Group, (01/01/12-10/25/12). Ex. C-23.

Training – CITCA, (01/01/12-12/31/12). Ex. C-24.

PSE & G

Ex. C-2

Elizabeth Vlahopoulos

C-22, p. 2, 14, 15, 16

C-5 Supervisor/Competent Person
Refresher Training for Deleading of Industrial Structures – 06/11/12.

None

None

None

Peter Vlahopoulos

C-22, p. 2, 14, 15, 18

C-5 Supervisor/Competent Person
Refresher Training for Deleading of Industrial Structures – 06/11/12.

None

None

None

Juan Alvarenga

None

None

C-24, p. 4, 59-65, 88, 91.

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12

Alexandre Alves

C- 22, p. 5, 8; R-11

Fall Protection Training
04/03/12.

C-22, p. 12; R-11

OSHA 10 – Hour Training Course
– 04/04/12.

C-23, p. 4, 5, 11

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

None

C-2

Sub Station Awareness

08/02/12

Carlos Aquino

C- 22, p. 5, 10; R-11

Fall Protection Training
04/03/12.

C-22, p. 12; R-11

OSHA 10 – Hour Training Course
– 04/04/12.

C-23, p. 4, 5, 10

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

None

C-2

Sub Station Awareness

08/02/12

Evaristo Jr. Concepcion

None

None

C-24, p. 4, 23-31, 90, 91

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12.

Jose Neves Da Paz

C- 22, p. 5, 9; R-11

Fall Protection Training
04/03/12.

C-22, p. 12; R-11

OSHA 10 – Hour Training Course
– 04/04/12.

C-23, p. 4, 5, 8

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

None

C-2

Sub Station Awareness

08/02/12.

Valdeir De Souza

None

None

C-24, p. 4, 66-74, 84, 91

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12.

Jose
M. Felix

None

None

C-24, p. 4, 14-22, 91.

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12.

Fabio Cassimino Ferreira

None

None

C-24, p. 4, 75-81, 85, 91

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12.

Jeff Goykhmad

C-22, p. 2, 14, 15, 17

C-5 Supervisor/Competent Person
Refresher Training for Deleading of Industrial Structures – 06/11/12.

None

None

None

Edivaldo C. Medeiros

None

None

C-24, p. 4, 41-49, 91

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12.

Elvis
Pimentel

C-22, p. 24

OSHA 30 – Hour Training –
08/18/12.

C-22, p. 26.

C-5 Supervisor/Competent
Person Refresher Training for Deleading of Industrial Structures – 08/13/12.

None

None

None

Gilbert
Roman

None

C-23, p. 4

NFPA 70E Electrical Arc Flash
Training – 04/05/12.

None

None

Alvaro Renso Salazar

None

None

C-24, p. 4, 50-58, 91

Authorized Climber – 08/07/12.

C-2

Sub Station Awareness

08/02/12.