Connecticut Light & Power Company

Plain-English summary

A Connecticut Light & Power crew was replacing substation equipment when a lead electrician contacted a 23,000-volt lightning arrestor and was fatally injured. OSHA alleged that the utility's training and supervision were inadequate under the general duty clause. The Commission found that the experienced crew understood the electrical clearance rules, had received extensive training, and would have deenergized the arrestors if they had noticed them. The hazard was plainly visible, the task was routine, and the crew's failure to see it was unexplained and unforeseeable. The Secretary did not show that closer supervision or additional training was a feasible and useful measure that knowledgeable industry professionals would require. The Commission reversed the ALJ and vacated the citation and $500 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: General duty citation and $500 penalty vacated.
• Key point: An employer with adequate rules, training, and enforcement may rely on a skilled crew's judgment when the Secretary does not prove that additional supervision was necessary and practical.

Full text (OSHRC public release)

Docket No. 85-1118

SECRETARY OF LABOR,

Complainant,

v.

CONNECTICUT LIGHT & POWER COMPANY,

Respondent.

OSHRC Docket No. 85-1118

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The issue in this case is whether Connecticut Light & Power
Company (CL & P) violated the "general duty clause," section 5(a)(1) [[1/]]
of the Occupational Safety and Health Act of 1970, 29 U.S.C. � 651-678, by failing to
adequately rain and supervise employees who work in proximity to energized electrical
equipment. We conclude that CL & P adequately trained and supervised its employees.
Accordingly, we reverse the decision of the administrative law judge and vacate the
citation.

This case arises out of a fatal accident that occurred when one of CL & P's lead
electricians was electrocuted after contacting an energized lightning arrestor.[[2/]] On
May 21, 1985, CL & P sent a crew, consisting of lead electrician Robert Taylor and
substation maintenance electrician Peter Theroux, to replace a stand-off insulator[[3/]]
and three cut-outs[[4/]] at the Rood Avenue substation[[5/]] in Windsor, Connecticut.
Before beginning their task, the crew had to carry out their switching instructions, which
made it possible for them to deenergize the areas to be worked upon and to reroute the
power to avoid an interruption of service to a nearby shopping mall. Switching
instructions are a set of orders that show every step necessary to de-energize and
electrically isolate the equipment that will be worked on. Switching instructions are also
designed to reroute power to avoid interruptions in service. These instructions are
written by system dispatchers, technicians, or engineers and are individually written for
each work assignment. Although the instructions are written by employees who may never
even have seen the worksite, onsite personnel are involved in implementing the
instructions. Thus, every step of the procedure is called into the dispatcher when
completed by the onsite maintenance workers. Clearance is then obtained from the
dispatcher to go on to the next step.

While the crew was carrying out their switching instructions,
they were visited by at least one of the two foremen in charge of the site, Louis
Pilver.[[6/]] The foreman engaged in general "shop talk" with the crew, and did
not discuss safety matters.

After completing the switching instructions, Theroux attached
grounds above and below the cut-outs to be replaced. The crew then placed their ladder on
the steel support framework to the right of the stand-off insulators and cut-outs, which
were located 15-20 feet above the ground. After replacing the first cut-out, the crew
moved the ladder between the middle and extreme left sets of insulators and cut-outs.
Taylor climbed the ladder to tie it off. Apparently, he soon came into contact with an
energized lightning arrestor and was fatally injured.[[7/]]

Theroux testified that, when he and Taylor arrived at the substation, they looked over the
area to assess the job and determine what safety hazards might be encountered. Even though
Theroux himself later testified that the lightning arrestors were obvious ("it sticks
out like a sore thumb"), the crew never noticed them at the time. Theroux could not
explain why the lightning arrestors were overlooked. He testified, however, that before
work begins, the electricians construct an imaginary "bubble" around the work
area and determine whether anything within that bubble is energized. He speculated that
the lightning arrestors were not noticed because they were outside the "bubble."

The lightning arrestors were energized with 23,000 volts. CL
& P's "Accident Prevention Manual" requires that employees not place any
part of their body, or reach with any conducting object, nearer than 30 inches from
equipment energized at that voltage. Here, the lightning arrestors were 30-32 inches from
the equipment to be worked on. Therefore, they would have been at or just beyond the
periphery of the "bubble" visualized by the crew.

As a result of an OSHA inspection and investigation conducted
after the accident, a citation was issued alleging that CL & P had violated section
5(a)(1) of the Act because employees were exposed to the hazard of electrocution by coming
into contact with the energized portion of lightning arrestors. The citation emphasized
that the employees were working without protection from overhead energized parts, and
specified four alternative steps CL & P could have taken to protect the employees:

(1) Deenergize and ground the energized parts at points of
work;

(2) Guard or insulate the energized parts from the employees;

(3) Guard or insulate the employees from the energized parts by
the wearing of appropriate personal protective equipment or the equivalent; or

(4) Maintain the minimum safe working and clear hot stick
distance, as shown in Table V of 29 C.F.R. 1926.950.[[8/]]

A penalty of $1,000 was proposed.

At the hearing, CL & P established that, under its safety
program, employees were required to take the protective measures listed in the citation.
Accordingly, the hearing focused upon the adequacy of the safety program as a means of
eliminating the cited hazard and the adequacy of supervision.

CL & P's "Accident Prevention Manual" requires
employees to take the safety measures set forth in the citation. As part of the employees'
training, they are expected to undertake a periodic, word-by-word review of the manual.
Both Theroux and Taylor had taken part in the most recent review; this occurred in late
1983, approximately one year before the accident. Another review was scheduled for 1986.
CL & P also conducts regular monthly safety meetings where attendance is mandatory.
The meetings generally last between five minutes and two hours, depending on the topic
being discussed. At these meetings, supervisors review accidents that occurred throughout
the country, examine "close calls" within the company, and discuss a wide
variety of topics, such as protective equipment, switching and tagging, and use of rubber
goods. Also, employees are given an opportunity to discuss any safety problems that they
might have encountered. Each area within the company has a safety committee composed of
employee representatives from each department. These committees evaluate safety by going
into the field and visiting work areas.

It is the duty of the supervisors to make sure that jobs are
performed safely. To carry out this responsibility, foremen visit the sites, hold safety
meetings, and institute safety incentive programs. During a site visit, the supervisor has
the responsibility of pointing out hazards that may be encountered.

Although supervisors are ultimately responsible for seeing that
work is performed safely, the company also places substantial responsibility on the work
crews for assuring their own safety. For example, a crew leader is expected to assess the
work site for potential difficulties before beginning a job. It is also up to the crew to
determine if safe clearances can be maintained from energized equipment or if the
equipment should be de-energized.

To enforce its safety rules, CL & P has a policy of progressive penalties varying with
the type of violation. Ordinarily, the first step is a verbal warning, followed with a
letter placed permanently in the employee's file. Continuing offenders could be suspended
and, ultimately, fired. Fillmore Bain was the Area Superintendent of the Hartford Area
Work Center for CL & P at the time of the accident and, at the time of the hearing,
was the company's Director of Occupational Safety and Health. He testified that, in his
three years with the company, he has made sure that employees received letters of
reprimand when this sanction was called for, but he was unaware of any instance where an
employee had been either suspended or fired. He also testified that, before the incident,
CL & P's Hartford Area Work Center, of which the Windsor facilities are a part, had
gone two years without a lost-time accident.

It was undisputed that CL & P's safety program, as
reflected by its safety manual and training program, required its employees to follow the
precautions set forth in the citation and that, on paper, the company had an excellent
safety program. The Secretary contends, however, that the safety program was deficient in
two primary areas: training and supervision. That the employees failed to detect and
comprehend the hazard posed by the lightning arrestors is strong evidence, in the
Secretary's view, that the safety training provided by the company was deficient. Further,
the Secretary contends that the failure of the foremen to point out the hazard posed by
the arrestors when they visited the site indicates a lack of proper supervision.

In affirming the citation, the judge held that the company had
failed to establish, as an affirmative defense, that the accident was the result of
unpreventable employee misconduct. Although the Judge found no fault with the safety
training given employees, he agreed that the Secretary had established that the hazard
would have been both foreseeable and preventable if the company had exercised adequate
supervision. In so finding, he agreed with the compliance officer that, while on paper CL
& P had an excellent safety program, in practice the program was lacking, primarily
because it overemphasized employee compliance with safety requirements at the expense of
supervisory responsibility.

We see this case differently. To establish a section 5(a)(1)
violation the Secretary must prove (1) that a condition or activity in the employer's
workplace presented a hazard to employees, (2) that the cited employer or the employer's
industry recognized the hazard, (3) that the hazard was causing or likely to cause death
or serious physical harm, and (4) that feasible means existed to eliminate or materially
reduce the hazard. Kastalon, Inc., 12 BNA OSHC 1928, 1931, 1986-87 CCH OSHD �
27,643 at p. 35,973 (No. 79-3561, 1986); Pelron Corp., 12 BNA OSHC 1833, 1835,
1986-87 CCH OSHD � 27,605 at p. 35,871 (No. 82-388, 1986). In this case, there is no
dispute that CL & P recognized the hazard posed by the energized lightning arrestors
and that the hazard was likely to cause death or serious physical harm. The disputed
question is whether the Secretary established that the company's abatement methods were
inadequate or that there was a more effective means by which CL & P could have freed
the workplace of the hazard.

When elimination of a recognized hazard requires employees to
follow safe procedures, an employer is not in violation of section 5(a)(1) if it has
established workrules designed to prevent the hazards from occurring, has adequately
communicated the workrules to the employees, has taken steps to discover noncompliance
with the rules, and has effectively enforced the rules in the event of noncompliance. Inland
Steel Co., 12 BNA OSHC 1968, 1976, 1986- 87 CCH OSHD � 27,647 at p. 36,003 (No.
79-3286, 1986).

If the Secretary alleges that the employer's work rules or
safety program are not adequate to eliminate a recognized hazard, then the burden is on
the Secretary to indicate the additional steps the employer should have taken to avoid
citation, and to demonstrate the feasibility and likely utility of these measures. National
Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267-68 & n.40 (D.C. Cir.
1973); Cerro Metal Products Div., Marmon Group, Inc., 12 BNA OSHC 1821, 1822,
1986-87 CCH OSHD � 27,579, at p. 35,829 (No. 78-5159, 1986). In addition, the Secretary
must show that knowledgeable persons familiar with the industry would regard these
additional measures as necessary and appropriate in the particular circumstances existing
at the employer's worksite. Cerro Metal Products. 12 BNA OSHC at 1822-23, 1986 CCH
OSHD at p. 35,829.

Thus, the judge's holding that the burden was on the employer
to show the adequacy of its safety program and that CL & P had failed to sustain this
burden was incorrect. Cerro Metal Products, 12 BNA OSHC at 1823, 1986 CCH OSHD at
p. 35,829. See Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC
1940, 1944-45, 1981 CCH OSHD � 25,470 at pp. 31,765-66 (No. 76-1174, 1981) (elements of
unpreventable employee misconduct defense, which applies to cases under section 5(a)(2)
alleging violations of OSHA standards, are part of Secretary's burden of proof in section
5(a)(1) cases). We conclude instead that the Secretary failed to meet her burden of
proving the inadequacy of the safety program because she failed to establish either that
the accident was the result of inadequate training or that more exact supervision by the
foremen would have been both feasible and useful.

The evidence establishes that the employees were trained
adequately to recognize the hazard posed by the energized lightning arrestors. Both
employees were accomplished electricians with years of experience on the job. Lead
electrician Robert Taylor had been with the company for ten years and had a spotless
safety record. Peter Theroux had been with CL & P for 14 years, including 4-1/2 years
in substation maintenance, and on occasion, he had performed as a lead electrician. Not
only was the job routine but, as Theroux testified, it took place at a substation at which
he had worked many times before. Theroux further testified that he was fully aware of the
hazard posed by energized lightning arrestors and of the need to maintain proper
clearance. He claimed that, if he or Taylor had been aware of the arrestors, they would
have had them de-energized before proceeding with the job. Theroux also stated that they
were not put under any time pressure to complete their job, and that de-energizing the
lightning arrestors would have taken only fifteen minutes. Yet, the record conclusively
establishes (through witness testimony and photographic exhibits) that the lightning
arrestors were plainly visible and obviously energized. Accordingly, neither Theroux nor
any of the other witnesses could explain how the crew had failed to notice the lightning
arrestors.

The evidence establishes that the crew's failure to observe the
arrestors was the result of unpredictable, and thus unforeseeable, employee error: it was
not caused by the crew's failure to understand the hazards involved or the precautions
that were necessary and was therefore not due to a lack of training. The crew was fully
knowledgeable about the hazard presented by the lightning arrestors. There is no evidence
that additional training would have made them more cognizant of the hazards posed by the
arrestors or more likely to take precautions against the hazard.

The Secretary next argues that, when the foremen visited the
site, they should have noted that, because of the proximity of the cut-outs to the
lightning arrestors, the work could not be done without violating the clearance
requirements. The Secretary faults the foremen for not recognizing that the arrestors
would not be de-energized during the switching procedure and for failing to instruct the
crew to have the arrestors de-energized. The Secretary contends that the absence of a
warning of the hazard presented was due to inadequate supervision and the company's policy
of relying too heavily upon the safety consciousness of its employees.

We disagree, and find that the company was justified in relying
on this skilled and practiced crew to discover the hazard and take proper precautions. As
already noted, both employees were highly experienced and well trained, and both had
excellent safety records. Additionally, Theroux had worked at that substation on numerous
occasions and could reasonably have been expected to have been familiar with its
configuration. Moreover, when foreman Pilver visited the site, the crew was still
performing switching procedures. Therefore, he had neither actual nor constructive notice
that the crew was unaware of the arrestors.

This was not a situation involving an unusual, hidden, or
easily overlooked hazard. Rather, the hazard was open and notorious. The work was
considered routine. To hold that, under the circumstances of this case, the foremen should
have warned the crew about the arrestors would be tantamount to placing upon supervisors
the duty to warn employees about every conceivable hazard that may be encountered at every
stage of a job, regardless of how basic and obvious the hazard might be and regardless of
how well-trained and experienced the employees might be. As stated by the United States
Court of Appeals for the District of Columbia, in vacating a similar section 5(a)(1)
citation:

Hazardous conduct is not preventable if it is so idiosyncratic
and implausible in motive or means that conscientious experts, familiar with the industry,
would not take it into account in prescribing a safety program. Nor is misconduct
preventable if its elimination would require methods of hiring, training, monitoring, or
sanctioning workers which are either so untested or so expensive that safety experts would
substantially concur in thinking the methods infeasible.

National Realty & Construction Co. v. OSHRC, 489
F.2d at 1266.

An employer is justified in placing a great deal of reliance on
the judgment of highly experienced and trained employees with good safety records. Cerro
Metal Products, 12 BNA OSHC at 1825, 1986-87 CCH OSHD at p. 35,832. There is no
evidence that, given the experience and record of these employees and the obvious nature
of the hazard, any knowledgeable person familiar with the circumstances would have
anticipated that the crew would overlook the lightning arrestors. Moreover, the Secretary
has failed to present any evidence that such a level of supervision would be either
feasible or reasonable, or that the level of supervision provided by the company fell
short of what conscientious persons familiar with the industry would employ.

Accordingly, it is ORDERED that the judge's decision is reversed and the citation is
vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: April 26, 1989

SECRETARY OF LABOR,

Complainant

v.

CONNECTICUT LIGHT & POWER COMPANY,

Respondent

OSHRC Docket No. 85-1118

Decision & Order

Appearances: For the complainant:

Albert H. Ross, Regional Solicitor

U. S. Department of Labor, Boston, MA

BY: David A. Snyder, Esq.

For the respondent:

Dean M. Cordiano, Esq.

Day, Berry & Howard

Hartford, CT

The Issue:

A lead electrician with 10 years' experience suffered fatal
injuries at a substation when he, in violation of his employer's safe clearance (distance)
rule, came too close and actually contacted an energized lightning arrester. As a result,
his employer was charged with a violation of the general duty clause [29 U.S.C. �
654(a)(1)[[1/]] because the workplace it provided was not "free" of recognized
hazards as that term has been defined.[[2/]] The essential defense is based upon
unpreventable employee misconduct.

Since, ultimately, "...effective safety enforcement
requires a diligent effort to discover and discourage violations of safety rules by
employees,"[[3/]] the factual issues presented, proofs directed to, and argued are:

1) Were respondent's employees sufficiently educated and
trained in the company's safety manual; and

2) Were respondent's two supervisors, who visited the
substation separately before the electricians there set up the ladder to approach the area
where the job was to be done, remiss in their functions (so that, statutorily, the
workplace was not "free" of the hazard) by failing to point out the proximity of
the lightning arresters to that area and reminding the electricians of the safeguards to
be observed.[[4/]]

If the electrician's training was flawed so that he did not
comply with the respondent's safety manual; or if the two supervisors should have warned
the electrician of the danger, then, in either case, complainant has carried his burden of
proving the alleged violation was foreseeable and could have been prevented.[[5/]]

To rebut this, respondent must show that it (1) has established work rules designed to
prevent the alleged violation; (2) has adequately communicated these rules to its
employees; (3) has taken steps to discover violations; and (4) has effectively enforced
the rules in instances of their violation. Secretary v. Marson Corp., 82
OSAHRC 29/C4, 10 BNA OSHC 1660, CCH � 23,629 (1982).

Based on my findings and conclusions below, respondent has
failed to rebut complainant's proof of inadequate supervision and the citation is
affirmed.

Statement of Proceedings:

Two electricians employed by respondent, Connecticut Light
& Power Company, a manufacturer and distributor of electricity in Connecticut, were
assigned to its Rood Avenue substation in Windsor, Connecticut, to perform routine
maintenance work. An accident occurred and over the period of June 10 to July 17, 1985,
complainant, the Occupational Safety and Health Administration of the U. S. Department of
Labor, conducted an inspection and investigation. As a result, on September 11, 1985, a
citation was issued [[6/]] alleging a violation of the general duty clause (note 1, above)
in that employees were exposed to the hazard of electrocution by coming in contact with
energized portions of lightning arresters of approximately 23,000 volts without
protections while replacing stand-off insulators and fused cut-outs. The citation
specifies the following methods of abatement available, "among others:"

1. De-energize and ground the energized parts at the points of work;

2. Guard or insulate them from employees;

3. Ground or insulate the employees from the energized parts
   with personal protective equipment; or

4. Maintain the minimum safe working distance shown at table
   V-1 of 29 C.F.R. � 1926.950.

A civil penalty of $1,000 is proposed and immediate abatement
was required. [[7/]]

Respondent's notice of contest is dated September 27, 1985, and
brings all aspects of citation into contest. It also broaches the ultimate defense
claiming that the incident "was an isolated case of an employee's failure to abide by
well established and consistently enforced safety rules."

The matter was heard on March 20 and 21, 1986, with both
parties represented by counsel. No employee or his organization claimed party status after
due notice (Tr. 5/20, 4). Respondent admitted the jurisdictional facts alleged in the
complaint that it is an employer having employees and that it affects interstate commerce
(Tr. 5/20, 4-5). Hence the Commission's power to decide this case is established. 29
U.S.C. �� 652(3), (5) and 653(a). Post-hearing proposals and reply briefs were filed by
September 5, 1986.

The Evidence:

On May 21, 1985, lead electrician Robert Taylor and substation
maintenance electrician Peter Theroux were assigned with one other electrician to replace
three stand-off insulators (which separates a live conductor from the steelwork on a
structure) and three cut-outs (or disconnects, a switch and fuse, in this case located on
a structure 15 feet up, which opens or closes a circuit) at the Rood Avenue, Windsor,
Connecticut, substation. A substation is a large facility containing transformers and
breakers on steelwork enclosed by a link fence and kept locked where the equipment will
receive power and lower it to a voltage usable by customers. The foreman, Louis Pilver,
made the assignment and the other foreman, Edwin Raines (now deceased), was also on duty.
(Tr., 5/20, 13-14, 18-19, 21, 22, 23, 32)

Twenty-three thousand volts of electricity entered this
substation on three incoming lines (Tr., 5/20, 29, 30). Photo exhibit C-5 shows this
substation (Tr., 5/20, 20). The cut-outs, stand-off insulators and lightning arresters are
clustered together and depicted close-up and marked on photo exhibit C-6 (Tr., 5/20, 26-
27, 66).

The lightning arresters will take a surge of power from
lightning and bring it to ground without blowing the fuse and protects the equipment from
these surges. They are about two feet tall, six to eight inches in diameter and are made
of porcelain with steel caps. (Tr., 5/20, 27-28)

As shown on photo exhibit C-8, three clearly visible taps
(lines) run from the incoming conductors to the lightning arresters (Tr., 5/20, 31). That
these are connected from the conductor to the arresters indicate, without doubt, that the
arresters are energized (Tr., 5/20, 102, 112).

The distance from the stand-off insulators and cut-outs
(equipment which was to be worked on) to the lightning arresters (which were not to be
worked on) was approximately 30 inches according to respondent's Director of Occupational
Safety and Health Bain. (Tr., 5/20, 236). Complainant's Compliance Officer Yi, from the
blueprints, was told that the distance was 32 inches (Tr., 5/21, 154-155). No actual
measurements of the distances were taken since to do so, the substation would have to be
totally de-energized and this was not deemed necessary (Tr., 5/21, 150-151).

According to the respondent's safety manual (exhibit R-1), a
distance of 30 inches or as stated there, a clearance of 2.5 feet, must be maintained from
energized parts of 23,000 nominal phase to phase voltage (R-1, page 39, section 27, and
Tr., 5/20, 120). No part of the employee or his equipment, including the ladder, may come
within that space (Tr., 5/20, 122-123). A sign, stating the required distances for the
different voltages, is posted on the substation's gate (Tr., 5/20, 111 and photo exhibit
R-9).

Both electrician Theroux and his crew supervisor Pilver
testified that the work assignment could not have been accomplished without violating the
clearance rule while the lightning arresters remained energized or not otherwise protected
against (Tr., 5/20, 105-106, 223-225).

Nonetheless, lead electrician Taylor, with the help of Mr.
Theroux, placed the ladder adjacent to the middle insulator and ascended it to tie it off
(photo exhibit C-7). No one actually witnessed what next happened (Tr., 5/20, 88), but he
contacted an energized part, was severely injured and did not recover (exhibit C-12). Both
parties agree that Mr. Taylor came into contact with the lightning arrester (Complainant's
Brief, page 6, and respondent's proposed finding no. 25). He was not, when he went up the
ladder, wearing protective gloves (Tr., 5/20, 75).

The men had de-energized only the equipment to be repaired
following the switching instructions, a process requiring about three hours (exhibit
C-14), had so notified the dispatcher, and were cleared to actually perform the work (Tr.
5/20, 49). After attaching grounds above and below the first cut-out (on the right of
photo exhibit C-6), Mr. Theroux removed the stand-off insulator, tested the switch
(handle) of the cut-out there and removed it and installed a new insulator. He then came
down off the ladder. (Tr., 5/20, 65, 76, 77-78, 78-79)

Before ascending, Mr. Theroux studied the area and mentally
constructed a "bubble" around the pieces to be worked on. This enveloped his
safe area and included the insulator and cut-out. What he had to do would not take him
into the clearance area between those pieces and the arrester, i.e., the latter was
outside of the bubble. Later he realized he could not have avoided invading the safe
clearance distance. (Tr., 5/20, 107-108)

The lightning arrester, close by, never came into his line of
vision (Tr., 5/20, 105). But it was obvious; however, he did not notice it (Tr., 5/20,
102-103). He testified that his statement taken and written by the compliance officer, Mr.
Yi, was inaccurate insofar as it indicated that both he and Mr. Taylor saw the arresters
and thought them to be de-energized (Tr., 5/20, 100-102 and exhibit C-15). He and Mr.
Taylor, while planning the work to be done and before doing it, did not mention the
arresters, barriers or personal protective equipment (Tr., 5/20, 109-110). Now, with
hindsight, the arrester sticks out like a "sore thumb" (Tr., 5/20, 109).

After he came off the ladder, Mr. Theroux and Mr. Taylor moved
it to a position between the other two insulators (photo exhibit C-6). Mr. Taylor went up
to tie it off while Mr. Theroux prepared the grounds to be attached when the accident
occurred. (Tr., 5/20, 68)

The purpose of the switching instructions (Tr., 5/20, 37,
exhibit C-14) is to so adjust those switches necessary to de-energize the equipment on
which work is to be done (Tr., 5/20, 44). The instructions set forth the steps to be taken
by individual number in the order they are to be taken and the sheet is initialed by the
electrician doing them and the time done. The accomplishment of each step is called into
the dispatcher and then the next step will be assigned. The sequence of the instructions
must be strictly followed by each crew involved. They are always written even in the case
of emergency and are prepared by the dispatchers or engineers. (Tr., 5/20, 45, 46-47)

Mr. Taylor, being the lead electrician received the switching
instructions on the morning of May 21 at the central headquarters (Sheldon Street,
Hartford) where all employees first report every day (Tr., 5/20, 15, 45). The
instructions, prepared by the dispatcher, had been checked by Mr. Pilver, this crew's
supervisor (Tr., 5/20, 125). They are not complicated (Tr., 5/20, 113) and Mr. Taylor,
too, checked them thoroughly and made out all of the tags to be attached to the equipment
to be sure that no one would improperly energize any circuit (Tr., 5/20, 73-74).

Mr. Taylor read the instructions and Mr. Theroux opened and
closed the subject switches (Tr., 5/20, 85-87). After the area was de-energized, the
various pieces were tested and partially grounded in case they should become energized
(Tr., 5/20, 76-77).

According to respondent's Director Bain, these instructions
would not include de-energization of the lightning arresters as part of the job's
preparation. Rather, they prepare for the work electrically only. The schematic integrity
of the switching has no application to the physical characteristics of the work's
environment be it on a pole, in a manhole or out at a substation. (Tr., 5/21, 10-12) As
"an industry approach" (Tr., 5/21, 22, lines 24-25) switching instructions refer
only to the equipment being worked and takes only that out of service to avoid
interrupting other services (Tr., 5/21, 22-23). Other witnesses, all in respondent's
employ, testified to the same effect (Kost, Director of OS&H, Tr., 5/21, 110, 138;
Pilver, crew supervisor, Tr., 5/20, 140, 146, 169-170, 202)

In fact, however, Director Bain explained, the switching
instructions would put the men on notice that the lightning arresters would remain
energized unless they took some protective step. By opening a certain switch at the
substation (step 14 on C-14, the switching instructions), the 2N17 feeder line (23,000
volts) would bypass the substation to continue its service to a large shopping center.
That line then remained under load and was visibly tapped into the lightning arresters.
(Tr., 5/21, 25-28)

But, according to Mr. Theroux, he and Mr. Taylor should have
spotted the danger of the proximity of the arresters to their work area. He would not
expect a foreman to tell them about it unless they saw it, nor would he expect to have
them covered by the switching instructions. It is the responsibility of the electricians
to examine their areas to be sure they may be worked within safely. (Tr., 5/20, 96-97,
114, 125, 128, 130) And these men did that at this site (Tr., 5/20, 63, 73).

Both crew supervisors, Pilver and Raines, visited the work site
separately on May 21, 1985. The former while Mr. Taylor and Mr. Theroux were performing
the switching when the ladder had not been put up. (Tr., 5/20 375, 205). Mr. Theroux did
not remember when Mr. Raines arrived or what operation was being done. Neither supervisor
gave any instruction concerning safety or personal protective equipment or the arresters.
(Tr., 5/20, 49, 50, 53)

Mr. Pilver visits all work sites and checks safety. At this
site, he discussed only the necessity to replace all three cut-outs and nothing about
safety or the arresters which were obvious from the ground. Otherwise he did not check the
substation.

Mr. Pilver would have done the job as the men did, that is,
with the ladder where they placed it even though there were other options but with the
arresters de-energized. (Tr., 5/20, 136, 176-178, 195, 204, 206-207; also Director Bain,
Tr., 5/21, 6-7)

The company rule, well-known, is that the arresters were to be
treated as energized unless otherwise determined (exhibit R-1, page 30, item 21m). Any
line is subject to this, and Mr. Theroux never violated this mandate. (Tr., 5/20, 91, 100)
He did not assume these arresters were de-energized; he simply did not notice them (Tr.,
5/20, 101-102). In his experience, it is "very" unusual to work within the safe
clearance distance without some protection (Tr., 5/20, 118, line 20). It would have
required only about 10 minutes to call in the overhead (line) crew to detach the taps and
thereby render the arresters dead. No work would have been done until that crew finished.
(Tr., 5/20, 72-73, 104-105)

But, to the contrary according to Director Bain, it is not
unusual for man to find themselves too close to an energized line. Then, all work Stops
until the problem is resolved. (Tr., 5/21, 32-33) A videotape (exhibit R-10) was shown in
which Mr. Bain described four lines of defense to avoid the incident of May 21, 1985, none
of which were taken then: 1) Before any switching was done, the arresters should be
de-energized; 2) After the switching, but before grounding the pieces, de-energize the
arresters; 3) Test and verify that both sides of the work area were de-energized; or 4)
Identify any lines within the proximity of the work area and barricade them. In assessing
their circumstances, the closeness of the arresters is noted and all work would halt until
they are without energy. (Tr., 5/21, 35-37, 38)

The training required to achieve the status of electrician covers a four- year period.
Essentially, it is on-the-job training. A two-man crew will be headed by a lead
electrician and more than that will have a crew chief. The level above that is the foreman
then the substation supervisor. (Theroux, Tr., 5/20, 41-42, 95) Of Mr. Theroux's 14 years
experience, he, too, had served as lead electrician for about three years (Pilver, Tr.,
5/20, 14, 198).

The training program itself, "Planned Progression Program
Electrician" (exhibit R-8) indicates that five years are required as training before
the level of electrician is reached. For 18 months, the employee helps in all phases of
the work and learns to identify tools, equipment and their uses (levels C-1 to C-3); then
for 18 months, he assists in specific and detailed work and testing (levels B-1 to B-4);
and from his 36th month to 60th, he will perform switching and testing and will do
installation, maintenance and repair work (levels A-1 to A-3). In addition, formal
electrical and related courses are taken throughout. (See third page of exhibit R-8)

The Employee is rated as he goes along and Mr. Taylor completed
this training (Tr., 5/21, 67, 68-69). In fact, Director Bain commented, he performed
during his training and as a journeyman "in an exemplary manner" (Tr., 5/21, 69,
lines 9-10) being very conscientious, precise and alert. His safety record was spotless.
(Tr., 5/21, 69)

All personnel were required to review the respondent's accident
prevention manual (exhibit R-1) and sign-off that it had been done. There are no options
to avoid this and Mr. Taylor's last completion occurred in 1983. This is a formal and
checked procedure. (Tr. 5/21, 57 and exhibit R-3) Particularly, his review of the courses
on clearances (exhibit R-2) occurred in March 1982 (Tr., 5/21, 98). Mr. Pilver testified
that he took groups of employees, four or five, and reviewed each chapter of the manual
word by word about two years before the accident. Both Taylor and Theroux did this. He
believes this must be done periodically by company rule (Tr., 5/20, 198- 199). Respondent
also conducts incentive programs in which an article from the manual by number only is
posted on the board to be reviewed by employees. Mr. Pilver would then approach an
employee and if he knew the subject matter, he would be awarded a prize (Tr., 5/20, 197).

Monthly safety meetings are conducted both at corporate and
local levels. All types of visual aids are used and all complaints are heard. During the
six-month period preceding the accident, among other subjects discussed were all accidents
or close-calls, switching and hook-ups. (Director Bain, Tr., 5/21, 58-61) These meetings
are held during normal work hours [for one and a half to two hours (Tr., 5/21, 97)] and
attendance is mandatory (Director Kost, Tr., 5/21, 132-133).

In addition to these meetings, the safety committees with field
employees assigned along with management personnel inspect jobs in progress and these
committees also meet monthly (Tr., 5/21, 61). Safety tips or bulletins are posted
regularly (Tr., 5/21, 62).

Discipline also follows a set pattern of: 1) a verbal warning,
2) permanent letters to an employee's file, 3) suspension, and on the subsequent offense,
4) discharge. This is not rigid but will be governed by the type of violation (Tr., 5/21,
70).

Mr. Theroux was not disciplined as a result of the accident
because 1) he had not been in charge or responsible and 2) such action would have been
excessive because he had been close to Mr. Taylor and the message of the event--the
purpose of disciplining an employee--was very clear. But he, Director Bain, and Crew
Supervisor Pilver were in that their ratings were affected (financial) because safety
goals were not met. This will remain in their files for three years. (Director Bain, Tr.,
5/21, 72-73, Mr. Pilver, Tr., 5/20, 190, 191, 210)

Both electricians had no prior safety violations and Mr.
Theroux was capable of leading this job (Mr. Pilver. Tr., 5/20, 211-212, and Mr. Theroux,
92). The latter testified that no special instructions were given for this job or warnings
and the rules concerning protective equipment, barriers, clearances and de-energizing the
arresters were standard operating procedures well known to both men (Tr. 5/20, 34-35). He
had worked with Mr. Taylor before and never saw him violate a clearance rule (Tr. 5/20,
93). Mr. Theroux had worked at the Rood Street substation many, many times (Tr., 5/20,
96). This job was routine and all of the equipment was familiar (Tr., 5/20, 98, 115).

Mr. Pilver testified that it was the lead electrician's
responsibility to assure a safe work area beyond that created by the switching
instructions (Tr., 5/20, 201); and Director Bain stated that all men were responsible for
safety, to carefully check the area before picking up a tool (Video, exhibit C-16, Tr.,
5/20, 241, 242). The crew had to make the judgment or disconnecting the arresters if their
work brings them into too close proximity by company rule (Tr., 5/21, 22). The person
receiving the clearance must insure a safe work area and identify it to all workers
according to the manual, section 2.5, page 5 (Tr., 5/21, 29, 30 and Mr. Pilver, Tr. 5/20,
209, exhibit R-1, sec. I, part I, item B). Actually, Director Bain's investigation of the
accident revealed 12 violations by Mr. Taylor of the safety manual (Tr., 5/21, 41-55,
respondent's proposed findings 48, 51-61). Although Mr. Theroux did not notice the
arresters and assumed that the area was de-energized, company rule forbids such
assumptions (Tr., 5/21, 56). Yet, Director Bain admitted that what went wrong was unknown;
"we missed a very simple thing" (Tr., 5/20, 240, line 17); it was a simple job
and something (lightning arresters) that should have been seen (Tr., 5/20, 242 and 5/21,
5). But he does not consider that the supervisors (Messrs. Pilver and Raines) violated the
safety manual in not warning the men about the arresters since neither of them saw the
ladder in position and where that would place the electricians (Tr., 5/21, 94).

Missing the obvious was the cause, testified Director Bain, of
a couple of close situations encountered in the three months prior to May 1985. But until
December 1984, the company enjoyed a two-year period free of any lost time accident. (Tr.,
5/20, 241-242)

Robert Kost who had held Director Bain's position on May 21,
1985, and is now Regional Superintendent of Electrical Operations meaning that he has
overall responsibility for respondent's entire operation in southwest Connecticut (Tr.,
5/21, 105-107), summarized respondent's report of the employee injury (exhibit R-4) by
stressing two violations committed by Mr. Taylor and Mr. Theroux. Mr. Taylor failed to
insure 1) that the work would be done safely and 2) that the switching did in fact provide
a safe work area, both aspects being the lead electrician's responsibility [Manual, � I,
Part I, Page 1, subsection (b)]. And Mr. Theroux, as the worker, was also responsible for
ascertaining the boundary or a safe work area. (Tr., 5/21, 130-131)

Mr. Kost would not expect Mr. Pilver to rely on his memory of
the clearances between pieces of equipment at the 40 to 50 substations, each being unique,
to warn the electricians; but he is certain Mr. Pilver would have done so had he seen the
ladder in position. While he is trained to foresee circumstances, each individual worker
is also so taught. (Tr., 5/21, 138, 140)

Mr. Pilver, in the Distribution Clearance Request which he
prepared (exhibit C-13), did-as a special instruction-require the placement of grounds on
both sides of the subject equipment. The intent of this, according to Mr. Kost, was to
establish the work zone. (Tr., 5/21, 110-111)

By state statute, the Connecticut Department of Public
Utilities is required to report on this type of accident. The engineer making this report
(exhibit R-5) found the following violations: improper grounding; a failure to de-energize
the arresters; a failure to wear protective gloves but this was not a contributing factor;
and a failure, particularly by the lead electrician, to observe the total area. The
accident was not due to any faulty or improper construction or operation or the plant or
equipment. (Tr., 5/21, 134-136)

Mr. Kost noted that all of the citation's abatement
requirements had already been established by respondent's policy and manual (Tr., 5/21,
129).

Kang S. Yi, as a safety engineer, made the inspection for the
complainant leading to the issuance of the citation. He holds degrees in electrical
engineering from the University of Hartford and from a university in Korea. (Tr., 5/21,
141-145)

As a result of his opening conference with Mr. Kost, he rated
respondent's safety program very highly (Tr., 5/21, 146, 147 and exhibit R-7, OSHA
worksheet, page 23. But by the completion of his inspection, Mr. Yi changed his evaluation
of the program to inadequate (Tr., 5/21, 147-148).

This change is not reflected on the worksheet but the narrative
report of the compliance officer does suggest that the initial impression was mistaken.
There, Mr. Yi read, "Company has a good safety program for its employees. However,
they rely on the individual for job safety analysis." (Tr., 5/21, 166-167, 168, and
170 at lines 19-22) The program then, to Mr. Yi, is good only on paper (Tr., 5/21,
148-149, 171) But on the worksheet and note sheet. (exhibit R-15 and the note-taking
sheet, exhibit R-16) both of which Mr. Yi was cross-examined on point-by-point, do not
reveal any part of the program weak enough to support the downgrade (Tr., 5/21, 173-178).
And this change was not mentioned at the closing conference (Tr., 5/21, 178)

Nonetheless, Mr. Yi testified on several points to justify his
conclusion that the safety program was not adequately communicated to employees:

1) Had Mr. Theroux been adequately trained, he would have
noticed the obvious lightning arresters (that he didn't, shocked Mr. Yi), and Mr. Taylor
would not have violated all the rules specified by Director Bain;

2) Mr. Pilver did not ensure that the area was safe to work
within, i.e., the training was inadequate because the arresters were seen and nothing was
done. Even though the ladder was not in position, supervisors knew what had to be done and
should have examined the substation with that in mind. Mr. Pilver should have required
disconnecting the taps while the electricians were still in the switching process (Tr.,
5/21, 201-202, 205, 208, 209, 211-212, 217) When Mr. Pilver visited the site he did not
properly investigate or instruct the men; he simply passed the time or "normal job
talk" as Mr. Yi paraphrased Mr. Theroux. (Tr., 5/21, 149-150, 180-182); and

3) The job was not well coordinated. While the assignment would
be to replace an insulator and three cut-outs, the men took only the former with them and
would have to send for the cut-outs had the job been then completed. Too much was left to
what the employee should have understood and not enough direct supervision. (Tr., 5/21,
149)

Joseph Barresi, respondent's superintendent of substation
construction, testing and maintenance, attended the closing conference on July 17, 1985.
According to Mr. Yi, Mr. Barresi stated that--as a result of an incident in 1982 at a
substation in which an employee was killed--the company formed a team to inspect every
substation for possible clearance problems. That was the main point of the team's
objective and the Rood Street facility was one found to have the problem. It was to be
corrected during the planned upgrading of the station (to 115 KV) but, due to the cost,
that had not been accomplished by May 1985. (Tr., 5/21, 156, 157-158)

Mr. Barresi (called by the respondent), however, denied
specifying Rood Street as having a particular clearance problem. It was merely mentioned
as one station on a list of many to be reviewed for clearance problems. What was mentioned
about that station was its upgrading and the necessity to replace a transformer there and
remove metal clad switch gear. (Tr., 5/21, 222, 226-227)

Contentions of the Parties, Findings of Fact and Conclusions:

Complainant argues that respondent failed to provide a
workplace free of recognized hazards based on four factors:

1) The men were required to be within the safe-clearance
distance of the arresters by the very nature of the physical layout of the work area;

2) Respondent, above the level of lead electrician, took no
steps to assure the de-energization of the arresters;

3) No warning was given to the men of the danger before the
danger was encountered and;

4) Two crew supervisors inspecting the worksite before the men
were actually exposed to the hazard failed to remind or admonish the men of the obvious
peril in their work area. (Complainant's Brief, pages 8-9)

The evidence presented supports these elements; respondent does
not dispute them; and I find them to be the fact and even though Director Bain indicated
that the switching instructions would put the men on notice of the live arresters, they
should have known this by obvious and more immediate signs, i.e, the taps connected to
them from the three conductors.

These--coupled with respondent's acknowledgment that (1) the
arresters with their power and proximity to the work area were a recognized hazard which
(2) could cause death or serious physical harm and which (3) could have been avoided by
any of the four methods specified in the citation "among others"--complete
complainant's proof of his case. Respondent's attempt to rebut this on the grounds of
unpreventable employee misconduct has not been factually supported.

That defense--fully tried out[[8/]]--also rests on four
factors:

1) the existence of work rules to prevent a violation;

2) adequate communication of these rules to its employees;

3) a system to discover violations; and

4) effective enforcement of the rules when violations are
discovered. Secretary v. Marson Corp., above. And the defense must be
measured against the statutory principle that "...an employer has a duty under the
Act to anticipate the hazards to which its employees may be exposed and to take the steps
necessary to prevent such exposure." Secretary v. Mosites Construction Co.,
81 OSAHRC 40/A2, 9 BNA OSHC 1808 at 1812, CCH � 25,357 (1981).

In short, the work rules, item (1) of the defense, must be so
drawn, complete and understood to effectively protect against a hazard when the rules are
properly communicated and enforced.[[9/]]

I find that the understanding of respondent's work rules by its
supervisors and electricians to prevent an occurrence such as that of May 21, 1985, are
deficient. Specifically, the Accident Prevention Manual, Section 1 (exhibit R-1):

Supervisor's (above the level of lead electrician)
Responsibility for Safety:

Item 1(a)1: for safe working conditions;

Item 1(a)4: for properly planned work performed in a safe
manner;

Item 1(a)5: for application of the general and specific safety rules by their workmen; and

Item 1(a)7: for immediate steps to correct any violation of safety rules observed....

These rules, I find, impose a positive duty on supervisors to know the hazards to be faced
by employees in the routine performance of their jobs and to warn those employees against
them.

Since Mr. Pilver testified that the way in which the work was
done-- placement of the ladder--was expected and was the way he would have approached the
insulators and cut-outs, the closeness of the arresters should have been noted and the men
warned of the hazard. That is, planning is anticipation for providing the "safe
working conditions" (item 1(a)1), a supervisor's responsibility.

But, according to the testimony of respondent's Messrs. Bain,
Kost, Pilver and Theroux, the company relies on the lead electrician and other employees
on a particular assignment to finally decide whether their work area was safe. And this I
find to be the fact.

That reliance is based on the Safety Manual, section 1, part
1b:

b. Employees assigned to direct or lead a working crew will be held responsible for seeing
that job procedures are carried out in a safe manner. They shall make certain that the men
understand the following:

1. Work to be done.

2. Hazards that may be encountered.

3. Proper procedure for doing the work safely.

4. They are responsible for making available suitable
   protective equipment as furnished by the Company and seeing that it is

properly used.

5. They are responsible for proper planning of work and for
   ascertaining that all involved understand the plan so that each can carry out his job
   procedure safely.

And, I find as fact, the electrician's violated items 2 through

5. In falling to account for the closeness of the arresters, they did not encompass the
   hazards to be encountered in their plan of the work (item 2); their procedure in failing
   to de-energize them was not proper (item 3); protective gloves were not worn (by Mr.
   Taylor) up in the work area (item 4); and the work was not properly planned before it was
   attempted to be done insofar as the grounding was not done above the area (item 5).

However, I find, all of these violations--except that of item 4
(protective gloves)--could have been prevented, i.e., were foreseeable, if the meaning of
the rules was carried out concerning the role played by the supervisors.

Framing the specifics of their performance set out above in
part 1a of the manual is first the statement:

a. Supervisors have the definite responsibility for the
following (emphasis mine).

The specifics follow and then the obligations of the employees
(part 1b) are set out. After that is section 1c which again refers to supervisors and
closes the frame:

c. Frequent periodic Inspections of construction, operation and
maintenance equipment, materials, work areas, conditions and methods should be made by
supervisors as a part of their routine duty. Such inspections are essential to prevent
accidents.

It is clear, then, from the juxtaposition of the employee's obligations between the duties
of the supervisors, that the primary safety responsibility is on the supervisor in a
certain and set sequence:

a) the supervisor plans the work to be done safely;

b) the employees do the work according to the plan in the safe
and proper manner; and

c) the supervisor inspects frequently and periodically to be
sure the work is being done correctly to prevent accidents.

Total reliance on b) renders a) and c) nugatory or, at best,
peripheral and not "definite" as the manual specifies. To avoid that result, it
is incumbent on the supervisor to plan the work--even during an on- site inspection--with
all protections against hazards that he can reasonably foresee.[[10/]]

The arresters were obvious from the ground. The crew
supervisors visited the site before the men entered the work area 15 feet up. Their work
would take them--in the normal and expected course--within the safe clearance distance of
the arresters. Yet, no word of instruction or warning was given. Respondent's policy, I
find, under its safety manual is to rely on the employee's judgment in this circumstance
and its manual is so interpreted.

I base this finding on the testimony of all of respondent's
witnesses who, in so many words, stated this interpretation. Additionally, Director Bain
refuted Mr. Theroux's comment by stating that it is not unusual for an electrician to find
himself too close to an energized part in the course of his work. Further, the Director,
in reviewing the company's safety performance, noted that the several close calls
occurring in 1985 (in the few months before the accident) resulted from, what he termed,
missing the obvious.

Such events are created in large measure by relying on the
employee's judgement on the scene as opposed to careful planning.

Thus, I conclude that respondent's safety manual defining the
supervisor's responsibility is inadequate insofar as it has been translated into an
operative procedure since the supervisor has no obligation to warn against the hazards he
knows of or actually sees at a site. His responsibility, as far as this record shows,
stops at assuring that the switching instructions do, in fact, take out of service only
that equipment which is to be repaired.

Such a work rule may not be considered effective against
dangers faced by employees. Respondent's defense of unpreventable employee misconduct
fails. Its rule, "Supervisors have the definite responsibility for ... safe working
conditions" (Manual, sec. 1, item 1(a)1), has not been effectuated (understood) to
prevent violations by its employees, in this instance, of its safe clearance minimums. Secretary
v. Marson Corporation, above.

I conclude that complainant has carried Ms burden. The
preponderance of the evidence shows that the employee's violation of the clearance rule
was foreseeable and could have been prevented but for the inadequacy of the safety
precautions and supervision in its failure to take note of and warn against an obvious
danger. Capital Electric Line Builders, Inc. v. Marshall, 678 F.2d 128, at

130. This is not a case where a properly conceived work plan is thwarted by the
     unanticipated act of an employee, albeit a supervisor. Pennsylvania P & L v. OSHRC,
     above at footnote 5, and Secretary v. Cerro Metal Products, __ OSAHRC __, 12
     BNA 1821, CCH � 27,57(?) (1986) (relied on by respondent in its reply brief), where the
     supervisor witnessed the employees conforming to the work rule (shutting down a press
     before maintenance work) and, in his absence, breaking the rule without the supervisor
     knowing it. That fact distinguishes that case from the fact pattern shown on this record.

On the contrary, here respondent excuses its supervisor from
allowing work to go forward without warning of an obvious danger. Thus, I agree with
Compliance Officer Yi's final conclusion, after a first and opposite impression, that the
manual is in theory only an excellent safety program. Because respondent relies so heavily
on the employee's compliance with his sections in denigration of the supervisor's
responsibility, the end purpose of the manual is not accomplished. And that reliance is
overemphasized and misplaced. REA Express, above at footnote 8.

I do not find that the record will support complainant's first
contention, namely, that the training of the employees was inadequate in any way or so
remote in time to account for the event of May 21. Both Mr. Taylor and Mrs. Theroux knew
and observed the rule in the past and it was posted on the substation's gate. Rather, I
conclude that an employee's violation of a company rule can be foreseen and prevented by
stricter and more exact supervision which is certainly required when men are working in a
lethal environment. Such prevention is envisioned in the respondent's manual since it
imposes on its supervisor's the "definite" responsibility for safety and
specifies that his inspections of worksites are "essential to prevent accidents"
(Manual, section 1, Items 1a and 1c).

In Brock v. L. E. Myers (No. 86-3215, 6th Cir.,
5/13/87), a situation where a supervisor ignored, at best, and contradicted, at worst, the
company's safety manual, the court concluded its decision stating:

We emphasize ... that the employer [relying on the defense of'
unpreventable employee misconduct] must demonstrate that [safety] program's effectiveness
in practice as well as in theory. (Slip Op., page 13)

Here, I find and conclude, that respondent's reliance on its
employees to finally determine the boundary of a safe work area nullifies the
effectiveness of the all- encompassing safety manual and renders as meaningless the
supervisor's duty of ensuring that accidents do not happen. Respondent's defense is
deficient and fails. The citation is affirmed in the order below.

The proposed civil penalty[[11/]] of $1,000 appears to be based on the gravity of the
violation and the fact that respondent was aware of the clearance problems (history)
generally at the substations based on the 1982 incident. It does not seem to take into
account respondent's good faith in terms of the effort it has expended and the emphasis it
places on safety overall. I find that it is cooperative with safety organizations (like
OSHA) and committed to safety. Secretary v. Nacirema Operating Co., 72
OSAHRC 1/B10 (1/33), 1 BNA OSHC 1001, CCH � 15,032. Taking this into account, I conclude
that a civil penalty of $500 is appropriate.

ORDER:

Based on the findings of fact and conclusions of law reached after considering the
evidence and the parties' arguments and proposals, which to the extent shown are adopted
or rejected as having insufficient support in the preponderance of the evidence or
precedent, it is ORDERED that the citation Issued September 11, 1985, alleging a violation
of 29 U.S.C. � 654(a)(1) is affirmed and a civil penalty of $500 is assessed therefor.

DAVID J. KNIGHT

Judge, OSHRC

Dated: July 1, 1987

Boston, Massachusetts

FOOTNOTES:

[[1/]] Section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1), provides:

Each employer...shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or likely to cause
death or serious physical harm to his employees.

[[2/]] Lightning arrestors are devices designed to protect
electrical equipment at a power station against overloading by taking a surge of power
from lightning and bringing it to the ground. The record does not indicate why the
lightning arrestors were energized.

[[3/]] A stand-off insulator is a device that maintains
physical separation between an energized electrical line and the steel supporting
framework of the substation.

[[4/]] A cut-out is essentially a switch that opens and closes
an electrical circuit.

[[5/]] A substation is a large facility containing transformers
and breakers on steelwork. The facility is enclosed by a locked link fence. The equipment
receives electrical power at high voltage and lowers it to a voltage usable by customers.

[[6/]] The other foreman in charge of the site, Edwin Raines,
also may have met with the crew shortly before the fatal accident. Unfortunately, Raines
died before the hearing, and Theroux could not recall when Raines had arrived at the site.
Theroux did testify, however, that Raines had not warned the crew about the lightning
arrestors.

[[7/]] At the time, Taylor was not wearing his protective
gloves. Nevertheless, the record indicates that the gloves would not have protected him
from the voltage involved.

[[8/]] According to this table, the minimum working and clear
hot stick distance for parts energized at 15.1 to 35 kilovolts is 2 ft. 4 in.

[[1/]] 29 U.S.C. � 654(a)(1):

Each employer

(1) shall furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees;

[[2/]] "Congress intended to require [by the Occupational
Safety and Health Act of 1970, 29 U.S.C. � 651, et seq. , and this section in
particular] elimination of only preventable hazards." National Realty & Co.,
Inc. v. OSHRC, 489 F.2d 1257 (1973) at 1266. That is the meaning of
"free" and it avoids the imposition of strict liability. Id., at 1266, note 36.

[[3/]] Secretary v. Paul Betty d/b/a Betty Bros.,
81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHC � 25,219 (1981).

[[4/]] Whether the hazard was "recognized" [29 U.S.C.
� 654(a)(1)] and could cause serious harm or death are admitted and not in issue as
detailed below. (Transcript, hereinafter Tr., 5/21, 128)

[[5/]] This is the complainant's burden which remains with him
despite respondent's affirmative defense of unpreventable employee misconduct. Complainant
does not rely on the fact that supervisors participated to show foreseeability but offered
proofs on insufficient training and lax supervision. See Pennsylvania P & L v. OSHRC,
737 F.2d 350, 357-358 (3d Cir. 1984)

[[6/]] Under the Occupational Safety and Health Act of 1970, 29
U.S.C. �� 651 et seq., citations are issued after inspection and may be contested
within a 15-working-day period. 29 U.S.C. �� 658 and 659(a).

[[7/]] The citation notes that abatement occurred during the
inspection.

[[8/]] So that any procedural difficulty borne of the
complaint's failure to allege an ineffective safety program as a specific abatement
created no prejudice to respondent or hampered its defense.

[[9/]] Hence the statutory responsibility is far greater than
the common law duty of employer to employee. REA Express, Inc. v OSHRC, 495
F.2d 822 (1974) at 825. The employer may not rely on the employee to exercise reasonable
care. He must take steps to ensure it.

[[10/]] A spot, visual inspection was deemed inadequate as a
diligent effort to determine whether employees wore insulating gloves underneath
their protective gloves. Secretary v. New England Telephone Co., 830 OSAHRC
29/DIZ, 11 BNA OSHC 1501, CCH � 26,535 (1983) (Chairman Rowland dissenting).

[[11/]] These are finally determined by the Commission based on
the violation's gravity and the good faith, history and size of the respondent. 29 U.S.C.
� 666(i).