L.E. Myers Company
Four willful power-line violations affirmed for $30,000
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Plain-English summary
L.E. Myers Company was replacing utility poles and lines near Napoleon, Ohio, while 12,470-volt lines remained energized. An apprentice was fatally electrocuted when a boom or its conductive steel cable contacted or approached an energized line while he handled the cable from the ground. The Commission affirmed four willful violations involving minimum clearances, precautions to prevent equipment contact, insulated protective equipment, and grounding or barricading the boom truck. It found that the crew's foremen repeatedly worked close to energized lines without adequate safeguards, ignored concerns about replacing a nonconductive rope with steel cable, and allowed the apprentice to work without insulated gloves. Their willingness to gamble on maintaining clearance demonstrated conscious disregard for employee safety, and their conduct was imputed to the company. The Commission combined two overlapping clearance-related items for penalty purposes and reduced the total penalty from $40,000 to $30,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.950(c)(2)(i), 1926.955(a)(5)(i), 1926.955(a)(6)(i), and 1926.955(a)(6)(ii)
- Outcome: Four willful violations affirmed, with two overlapping items combined and a total penalty of $30,000.
- Key point: Experienced supervisors' repeated decisions to work near energized lines without required protections can establish willfulness even when the employer has written safety rules.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
FAX
.
. COM (202) 634-4008
. F-X(202) 634-4008
SECRETARY OF LABOR, .
..
Complainant, :
v.
OSHRC Docket No. 90-945
L.E. MYERS COMPANY,
Respondent. :
.
DECISION
BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
This case involves an accident that resulted in the death of an employee of the L.E.
Myers Company (“Myers”) at a jobsite near Napoleon, Ohio. At the time of the accident,
Myers was engaged in the replacement of electric utilitv4 poles and lines. Following a subse-
quent inspection of the jobsite by the Occupational Safety and Health Administration
(“OSHA”), Myers was issued a citation that alleged four willful violations of the Occupation-
al Safety and Health Act, 29 U.S.C. 5s 651-678 (“the Act”).
Administrative Law Judge Paul L. Brady affirmed the violations as willful and
assessed a penalty of $10,000 for teach violation. Myers filed a petition for discretionary
review that was granted by thr Commission. For the reasons set forth below, we affirm the
judge’s decision in part and rnod]Ih;I it in part.
I. Background
L. E. Myers is an electrical contractor employing approximately 800 people. It was
awarded a contract by the town of Napoleon, Ohio, to replace electric utility poles and
2
electric lines along a 5.5.mile stretch on State Route 424. According to the contract, Myers
was permitted to deenergize power lines only when it would not cause service interruptions.
As a result, the power lines remained energized during replacement.
The existing lines were mounted on poles 30 to 35 feet high. The replacement poles
were 35 to 45 feet high. The wires were 3-phase and carried a voltage of 12,470 volts. Each
pole carried three wires. One wire was on the top of the pole while the others were on each.
end of an 8-foot arm. The wires were approximately 4-feet apart. The work was carried
out by a 4-man crew. The crew leader was general foreman Eldon Nye, a journeyman
lineman with more than thirty years experience. As general foreman, Nye was ultimately
responsible for safety on the job. Also on the crew was Jack Beard, the working foreman,
who had approximately twenty 4
vears experience as a journeyman lineman. Beard was not
a regular employee of Myers but rather had been hired out of the hiring hall of Local 245
of the International Brotherhood of Electrical Workers. Charles Shealey, a regular Myers
employee who had been with the company for twenty-four years, was the pole truck operator
and mechanic. His function was to dig the holes and set the poles. The final member of
the crew was Dennis Basinger, a third-step apprentice lineman. His job was to’put a cable
around the pole so Shealey could raise it with the boom on the truck.
On September 11, 1989, the crew began work to replace a pole on the crest of a bank
that was leaning away from the road. The hole dug for the new pole was 10 feet 6 inches
from the edge of the road. Although the work was proceeding at a steady rate, it was not
going as fast as had been anticipated. The slowdown was created when the crew found it
necessary to insulate the existing lines before working on a previous pole, a task which added
50 percent more time to the job. Also, some problems with the boom truck delayed the
crew an additional one to one and one half hours.
Before hoisting the new pole into position, the crew examined the position of the new
pole in relation to the existing ;ind still energized lines. Nye decided that a 3-foot distance
from the old pole could be maintained. Therefore, he did not order that the existing
energized lines be insulated with rubber sleeves. Moreover, the boom truck was not
grounded, and Basinger was not wearing insulated gloves. Although Shealey realized that
the clearance was “close,” nobody initially voiced any concerns.
A steel cable, coming from the boom, was to be tied around the new pole so that it
could be lifted into place. This cable replaced a nonconductive nylon rope which snapped
about a week before. Nye replaced the nylon rope with the steel cable because of steel’s
greater strength. Both Basinger and Shealey expressed concern to Beard over the use of the
steel cable because of the proximity to the energized lines. Beard testified that he relayed
these concerns to Nye, who shrugged his shoulders and walked away. Nye, however, denied
ever having received a complaint about the cable.
Basinger proceeded to wrap the cable around the pole so Shealey could pick it up
with the boom. He asked for more wire, but before Shealey could comply, Basinger pulled
on the cable to get additional slack. At the time, the boom was extended about 15 to 20
feet into the air and had about a foot of play in either direction.
Nye, who was directing traffic at the time, testified that Shealey moved the boom and
came dangerously close to the energized lines just prior to a flash. Shealey, on the other
hand, testified that after Basinger pulled on the cable, he saw a flash and then immediately
moved the boom to the right. He thought that the cable hit the wire. In either event, a
flash was seen as either the boom or the cable struck an energized line. The voltage then
passed down the steel cable and electrocuted Basinger.
As a result of the OSHA inspection that followed the accident, Myers was issued a
citation alleging four willful violations of the Act.’
Item 1 alleged a violation of 29 C.F.R. 5 1926.950(c)(2)(i)’ on the grounds that
employees were moving and setting poles in a way which required them to work within the
two-foot minimum clearance for 12,000~volt energized electrical conductors.
’ A second citation, alleging various serious violations was not contested and is not before the Commission.
-
The standard provides:
f$ 1926.950General requirements. ... i) Cl earances. C i;)-(i) The minimum working distance and minimum clear hot stick distances stated in Table V-l shall not be violated. The minimum hot stick distance is that for the use of live-line tools, held by linemen when performing live-line work. Table V-l requires a two-foot minimum working distance while working adjacent to energizedconductors up to 15,000 VOIDS.
4Item 2 of the willful citation alleged a failure to comply with 29 C.F.R.0 1926.955(a)(5)(i)3 b ecause employees were required to set poles directly under energized
lines using mechanical equipment. The setting of those poles required the use of a boom
truck whose boom length permitted contact with energized lines, and precautions were not
taken to prevent that contact.
Item 3 of the willful citation alleged a violation of 29 C.F.R. 0 1926.955(a)(6)(i).4
The gravamen of the item alleges that employees were required to handle lifting equipmentsuch as the steel cable, while working directly under and adjacent to the energized lines.
These employees were not required to wear gloves, sleeves, or other clothing insulatedagainst the voltage involved.
Finally, item 4 of the citation alleged a violation of 29 C.F.R. 8 1926.955(a)(6)(ii)’
on the 0grounds that the derrick truck was not bonded or barricaded while being used to set
. poles near the energized lines.
A penalty of $10,000 was proposed for each item.3 The standard provides:
0 1926.955 Overhead lines. (a) Overhead lines. .... (5) (i) Gen setting, moving, or r,emoving poles using cranes, derricks, gin poles, A-frames, or other lmechanized equipment near energized 1ines or equipment, precautions shall be taken to avoid contact with
energized lines or equipment, except in barehand live-line work, or where barriers or protective devices are4 The standard states:
(a) Overhead lines. . . . . 0 (i) &;ess using suitable prc)tc<tlkc equipment for the voltage involved, employees standing on theground shall avoid contacting equrpmenr or machinery working adjacent to energized lines or equipment.
5 The standard provides:
(a) Overhead lines. . . . . (6) (ii) Liftfng equipment shall be bonded to an effective ground or it shall be considered energizedandbarricaded when utilized near energized equipment or lines.
5Judge Brady’s decision affirming all four items as willful and assessing a penalty of
$10,000 per item was directed for review by Commissioner Donald Wiseman. On review
Myers advances on five arguments. It contends that ( 1) the violations were the result of
unpreventable employee misconduct, (2) it complied with the standards cited in items 2 to
4 of the citation, (3) the standards are vague, (4) section 1926.955(a)(6) is inapplicable, and
(5) the violations were not shown to be willful.
II . Unpreventable Employee Misconduct
A. Myers’Argumews
Myers argues that the accident was caused by the inadvertent actions of boom
operator Shealey, a normally skillful operator. It points out that before beginning work to
set the new pole, the crew examined the site and ail agreed that there was sufficient
clearance. Myers also notes Shealey’s acknowledgment that he somehow got closer to the
wires than he intended.
Myers further contends that its safety rules clearly prohibit operating a boom near
energized lines without protection if safe clearance cannot be maintained. It relies on the
lengthy experience of the crew, which was staffed with two supervisory journeyman linemen
with more than a half century experience on the job, and on the spotless safety records of
all members of the crew. Myers also points out that no one on the crew testified that
. they
felt pressure to speed up the job at the expense of safety.
B. Arralvsis
For the reasons set forth below, we find no merit in respondent’s contentions.
To establish the affirmative defense of unpreventable employee misconduct the
employer must show that it had a thorough safety program which was adequately enforced
and communicated and that the violative conduct of the employee was idiosyncratic and
unforeseeable! Brock v. L. E. 4~fy~r.sCo., 818 F.2d 1270, 1277 (6th Cir. 1987), cert. denied,
The circuit courts are split with respect to the burden of proof when there is a claim of employee
misconduct. Several circuits have held that an allegation of unforeseeable loyee misconduct constitutes
an affirmative defense to be pleaded and proved by the employer. See, e-g, Forging Indus. Y&VI. v. Secretary
of Labor, 773 F.2d 1436, 1450 (4th Cir. 1985)(en banc)(unforeseeable employee misconduct constitutes an
affirmative defense); Daniel Intl. Corp. K OSHRC, 683 F.2d 361, 363 (1 lth Cir. 1982)(same); H.B. Zachry Co.
(continued...)
6
484 U.S. 989 (1987). To prevail in the defense, the employer must present evidence
concerning the manner in which it enforces its safety rules. Stuttgart IMachine Works, Inc.,
9 BNA OSHC 1366, 1369, 1981 CCH OSHD II 25,216, pm 31,140 (No. 77-3021, 1981).
Respondent’s attempt to place the blame for the accident on the “unpreventable”
actions of Shealey is without merit. We find that Shealey had no responsibility for the
failure of Basinger to wear gloves or for the failure to ground or barricade the truck. These
were matters in the province of the supervisors. Similarly, it should have been up to the
foremen to take steps to ensure that the truck did not contact the line as alleged in item 2.
The only item over which Shealey arguably had control was the failure to maintain
clearance, due to his immediate control over the boom. Nye, however, was the only agent
of Myers with authority to authorize that the lines be insulated. Yet, the testimony of
foreman Beard and operator Shealey established that the members of the crew not only
knowingly gambled’ that they could maintain the proper clearance, but that they also
6(...continued)
v. OSHRC, 638 F.2d 812,818-19 (5th Cir. 1981)(same); Gene& &nmrics Carp v. OSHRC, 599 F.2d 453,458
(1st Cir. 1979)(same); Dance Consm Co. V.OSHRC, 586 F.2d 1243, 1246 (8th Cir. 1978)(same). Other circuits
place the burden of disproving unforeseeable employee misconduct on the Secretary. See Capital Elec. Line
Builders of Kansas v. Marshall, 678 F.2d 128 (10th Cir. 1982); Pennsylvnnin Powr. & Light Co. v. OSHRC, 737
F.2d 350,357 (3d Cir. 1984). (Secretary bears the burden of proving that supervisor’s failure to comply with
standard was foreseeable.)
The Commission has treated the issue as an affirmative defense to be pleaded and proved by the
employer. See, e.g., pride Oil Well Serv., 15 BNA OSHC 1809, 1816, 1992 CCH OSHD II 29,807, p. 40,585436
(No. 87-692, 1992). Moreover, the United States Court of Appeals for the Sixth Circuit, the circuit in which
this case arose, views employee disobedience as an affirmative defense. Brock v. L. E. Myers Co., 818 F.2d
1270, 1276 (6th Cir. 1987), ten. denied, 484 U.S. 989 (1987).
7 For exam ple, during the Secretarv’
es examination of Beard, the following exchange took place:
Q During the course of this job, when you were setting poles in close proximity
to the wires--for example, a foot or two feet--were you giving yourself any margin for error
when you didn’t insulate?
A NO. NO, not very much.
Similarly, Shealey testified as follows:
Q Let me ask you, in your experience on those two jobs, if the crew’s estimate
was that the pole would come within two feet of the overhead line, was there any standard
procedure followed on those jobs as far as safety and safety precautions were concerned?
A Yes.
(continued...)
7
occasionally violated the clearance requirements without taking the precautions mandated
by section 1926.950( c).8
Moreover, contrary to Myers’ assertions, there was evidence that the crew was both
shorthanded and under time pressure. Foreman Beard testified that, although the clearance
during the process of setting the pole which led to the fatality was close, the crew chose not
to insulate the lines because “it would have taken forever to build the line if we covered
everything up . . . . We were shorthanded on men. We didn’t have enough people to work
with.” This evidence shows that the violations were substantially caused by field decisions
made by respondent’s foremen rather than by Shealey’s departure from any workrule.
Similarly untenable is Myers’ claim that the violations were caused by the unforesee-
able failure of the foremen to follow proper procedures. When the alleged misconduct is
that of.a supervisory employee, the employer must establish that it took all feasible steps to
prevent the accident, including adequate instruction and supervision of its supeksory
employee. Daniel Constr., 10 BNA OSHC 1549, 1552, 1982 CCH OSHD ll 26,027, p. 32,672
(No. 16265, 1982). A supervisor’s involvement in the misconduct is strong evidence that the
employer’s safety program was lax. Brock v. L.E. Myers Co., id. Consolidated Freightways
Corp., 15 BNAOSHC 1317, 1321, 1991 CCH OSHD Tl29,500, p. 39,810 (No. 8600351,199l).
Therefore, where a supervisory employee is involved, the proof of unpreventable employee
‘(...continued)
From my observation from standing on the ground, if we thought it would come close
to that man, we would decide [hat we would rubber it up.
Sometimes if it was a IiW close and we didn’t think II w~id be over, we would take
a chance and go ahead and set the p>le after we got the hole dug. We would kind of analyze
where it would be sitting, and we would take a chance and set the pole in there.
’ Shealey, for example, clearly testlficd that the lines were not always insulated when apparently required:
Q In the last set of questions by L.E. Myers’ attorney, you responded to Mr.
McCarthy’s question that on those occasions when you knew you were coming into or in
some situations when you knew you were going to be within two feet of the wire with the
boom, those were times when these wires were insulated?
A Yes, some of the time.
Q. Not all of the tlme’!
A Not all the time, no.
8
misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisor’s duty to protect the safety of employees under his supervision. Id.
The evidence shows that foreman Nye ordered that the overhead wires be insulated
only when there was no doubt that the pole could not be erected without violating the
clearance limits. Where there was doubt whether the limits would be violated, the crew
would gamble that it could maintain the proper clearance and erect the pole without
insulating the lines. Moreover, although the crew insulated lines before erecting a pole
earlier on the day of the accident, Nye had wanted to press ahead in erecting the pole in
question without taking the proper precautions. Foreman Beard insisted on taking necessary
precautions and insulated the lines. It turned out that the precautions were required
because the crew ended up working directly into the wire. Nye’s exhibited penchant for
taking chances under these circumstances leads us to find supervisory misconduct regarding
item 1, section 1926.950(c).9
Regarding item 2, Mvers’ safetv manual at section 205(m) prohibits the use of lifting
w u I d 4
equipment where “any part of it can come c oser to energized lines than the absolute
minimum distances allowed” unless, among o her things, the equipment is insulated or
grounded. Nevertheless, in relation to item 1, the crew frequently operated close to the
lines, often gambling that it could maintain clearances, without insulating the lines or taking
other precautionary measures. Despite their workrule, the foremen often did not order
. that
the lines be insulated even when they knew that they had little margin for error. According
to Beard, they would not insulate when close to the clearance because “it would have taken
forever to build the line if we covered everything up.”
9 Myers also contends that the judge erred by finding that section 1926.950(c)(2) can be violated even where
the employer had no intent of corn&g within the minimum clearances. The argument is without merit. The
standard is designed to prohibit an event (coming too close to an energized line) not an intent. The
maintenance of proper clearance is an absolute requirement, the violation of which can only be excused upon
the establishment of an affirmative defense such as “unpreventable employee misconduct.”
9
Turning to item 3, the evidence does show that Myers’ safety rule,
section 310(d)(2)‘“, requires that employees wear safety equipment. Despite this rule, the
entire crew, including Beard, knew that Basinger never wore gloves. Indeed, Beard testified
that he knew that Basinger should have worn gloves because they were working close to the
lines. Notwithstanding this knowledge, Basinger had not been disciplined for not wearing
the proper safety equipment before the accident and Beard testified that he never instructed
Basinger to put on his gloves, despite the fact that Beard was wearing his own gloves.
The undisputed evidence also shows that, as alleged in item 4, Nye never required
that the truck be barricaded or grounded, even when the work was sufficiently close to the
lines that the foremen found it necessary to insulate the overhead lines.
Given the widespread violation of both OSHA and Myers’ own rules, the question
becomes whether the failure of Beard and Nye to comply with the applicable standards
occurred despite a vigorous program of safety education and enforcement. The evidence
does show that, at least on paper, the company had a significant safety program. It
conducted tailgate safety meetings, prepared and distributed safety manuals, and has
disciplined employees for safety violations. On the other hand, one of the factors considered
in determining whether an emplover
4 effectively enforced its safety rules are the efforts it
took to monitor adherence to those safety rules by supervisory employees. Dover Elevator
Co., 15 BNA OSHC 1378, 1382, 1991 CCH OSHD ll 29,524, p. 39,849 (No. 88-2642, 1991).
While there was evidence that the company does undertake periodic unannounced onsite
safety inspections, the record also shows that during the month or more that the crew was
at the Napoleon, Ohio worksite, Mvers’
e safety officials never undertook an impromptu safety
visit or conducted a safety meeting with the crew.
Another element of the affirmative defense of unpreventable employee misconduct
requires a showing that the cmplover
d effectively disciplines employee misconduct. LE.
Myers, 818 F.2d at 1277. At the hearing, Myers attempted to introduce evidence that it
disciplined employees for noncompliance with its safety rules. However, the judge excluded
lo The rule states that:
Employees handling the butt of the pole shall wear rubber gloves with leather protectors and
rubber sleeves whether or not cant hooks or slings are used.
10
evidence of seven separate disciplinary notices that Myers sought to introduce into evidence.
Myers argues that the judge’s refusal to admit this evidence substantially prejudiced the
company from establishing its defense of unpreventable employee misconduct as well as its
ability to counter the willful allegations.
We agree with respondent that this evidence was relevant to its attempt to establish
that it had an effectively enforced safety program and that it should have been admitted.
Although we find that the judge improperly excluded the evidence, we find no merit in
Myers’ claim of prejudice. Myers proffered the rejected exhibits. They were placed in the
official file and are available to this Commission on review. We have examined the
disciplinary notices. They generally involve situations such as a failure to wear hard hats,
unsafe use of a bucket, and unsafe driving. Only one of the of the seven notices was similar
to the violative conditions for which Myers was cited in this case. It involved an employee
who received a contact burn. That notice involved employee violation of company workrules
that are not in the current Myers safety manual.
Although these notices, which date back to 1974, suggest that in approximately
seventeen years the respondent found reason to discipline employees on only seven occa-
sions, they do show that the company has reprimanded employees for safety violations.
However, this evidence alone falls short of establishing the existence of an active and
effective program directed at ensuring that, insofar as possible, supervisors follow all OS-IA
and company rules regarding work around energized lines.
Moreover, at the hearing, the Secretary introduced evidence showing that over that
same period, Myers received at least four OSHA citations resulting in final orders that
involved fatalities dealing with clearance limits. These incidents suggest that, over the years,
Myers has had problems regarding employee failure to maintain adequate clearance from
energized lines. Given this hlstorv,. we can only conclude that Myers’ efforts to enforce its
safety rules have not been as et’tcctive as they could have been with greater diligence.
III. Meaning of the Terms “Near” and “Adjacent9’
A. Myers’Argumerzts
Myers argues that it was not operating “near” or “adjacent” to the overhead lines
within the meaning of section 1926.955(a)(5)(i) and (a)(6)( i)-(ii) and, therefore, items 2-J
11
of the citation, which alleged violations of standards applicable only where operating “near”
or “adjacent” to energized lines, should be vacated.
Myers notes that the judge based his affirmance of the section 1926.955(a) violations
on his finding that the company was using machinery or equipment “near” or “adjacent” to
energized lines without taking specified safety precautions. Myers points out that there is
no violation of that standard if equipment comes up to that limit. However, since the terms
“near” and “adjacent” are not defined in section 1926.955, Myers argues that there can be
no violation of the standards at section 1926.955 unless the 2-foot clearance under section
1926.950(c) is violated.” In short, Myers contends that the terms “near” and “adjacent”
refer to the distance between the line and the minimum allowable clearance. Myers argues
that, under the judge’s interpretation of the terms, there would be a violation of the standard
whenever any portion of the equipment could come into contact with the lines, even if they
would normally maintain a clearance greater than that required by 29 C.F.R. 6 1926.950(c).
Thus, it contends that “near” and “adjacent” would mean “far” and “removed”. Because
there .was no allegation that the employees ever intended to come closer to the energized
lines than the permissible two-foot clearance, Myers concludes that the employees did not
work “near” or “adjacent” to the energized lines, and contends that items 2-4 should be
vacated.
B. Auaf’ysis
We find that Myers’ arguments are without merit. The Commission has interpreted
section 1926.955 to be more restrictive than section 1926.950(c) and has held that the term
“near” as used in section 1926.955 requires safety precautions at a distance from energized
lines greater than that permitted bve section 1926.950(c). ferzrzsylvania fir. & Light Co. , 11
BNA OSHC 1321, 1326, 1983-M CCH OSHD ll 26,518, p. 33,757 (No. 79-5194, 1983), rev’d
l1 The standard provides:
§ 1926.950 General requirements.
(c) Clearances.
;$ ‘With the exception of eqwpmenl certified for work on the proper voltage, mechanical
equipment shall not be operated closer to any energized line or equipment than the
clearances set forth in 8 1926.950(c) . . . .
12
on other ground& 737 F.2d 350 (3d Cir. 1984); see Wiicortsirr Elec. Pw. Co. v. OSHRC, 56 7
F.2d 735 (7th Cir. 1977)‘*. As we noted in Perrnqlvarzia Power, the Secretary intended the
term “near” to mean within the reaching distance of an energized line. 11 BNA OSHC at
1326, 1983-84 CCH OSHD at p. 33,757. This interpretation is more practical and more
likely to prevent accidental electrocutions than the interpretation offered by Myers. By
requiring that safety precautions be taken when operating equipment comes within reaching
distance of an energized line, accidents like the one that txxurred here can more readily be
prevented. l3 In any event 9 as will be discussed later, Myers was found to be working within
the 2-foot clearance. Therefore, even if Myers’ interpretation of “near” and “adjacent” is
correct, it was, by its own definition, working “near” or “adjacent” to the energized lines.
IV. Vagueness
A. Myers ’Aqpmertls
Myers contends that, if the judge properlv d interpreted the terms “near” and
“adjacent,” the items must be vacated because the standard at 29 C.F.R. 0 1926.955, (items
2-4), is too vague to have provided sufficient notice of the conduct required.
Myers correctly observes that section 1926.955 can be violated even when a crew is
not working and has no intent to work within the minimum allowable clearances. However,
Myers asserts, the terms “near” and “adjacent” are not defined with any degree of clarity,
but are triggered at some undefined point greater than the minimum clearance limits.
Therefore, Myers concludes, its industry has not been fairly apprised of the requirements of
section 1926.955. Myers points out that in Wikoasirz Elecm’c, the Seventh Circuit, though
it did not find the standards vague, opined that they were not drafted with clarity. In a
dissenting opinion, however. Juclcc
I Pell found that the standards “were so impossibly vague,
indefinite, and confusingly juxtqx~sed as to deprive the petitioner of its constitutional rights
of due process.” 567 F.2d at 740. .Mvers
e also calls the Commission’s attention to Pennsyl-
‘* Actually, the Commission held that 8 1926.955 was intended to be more restrictive than the provisions of
8 1926.952(c)(2). However, the terms of that standard refer to and are substantially taken from 3 1926.950(c).
l3 The same rationale would apply to the term “adjacent.”
13
vania Power, where the court expressed sympathy with an employer’s task of gauging its
responsibility under section 1926.955. 737 F.2d at 359-60.
B. Analysis
Vagueness challenges are not measured against the facial text of the standard, but
are rather considered in light of the conduct to which they are applied. PBR, Inc. v.
Secretary ofLabor, 643 F.2d 890, 897 (1st Cir. 1981). Examining the claim of vagueness in
light of the crew’s actual conduct, we find that Myers’ contention is without merit.
In Pennsylvania Power, the court sympathized with the employer because it had
adequately enforced safety rules that contained clearances more stringent than those found
at Table V-1. Nonetheless, the Secretary cited the employer for working near energized
power lines without taking the precautions required by section 1926.955. Pennsylvania
Power defended partially on the grounds that its employees were in compliance with the
company rules. Because those rules required clearances greater than those. of the
Secretary’s standards, the company claimed that they were not operating “near” the
energized lines.
Although the court found that the clearances required by section 1926.955 were more
stringent than those required by section 1926.950(c), it also found that Pennsylvania Power’s
workrules represented a valid attempt to define the term “near” as used in the standard.
In reversing the Commission and vacating the citation, the court stated:
PP&L made every effort to interpret the governing regulations reasonably and
to implement them among its employees. We can understand the company’s
confusion when confronted with the task of transforming the applicable OSHA
regulations into useful safety rules for its working linemen and supervisors.
We have previously reminded the Secretary of his statutory ‘responsibility to
promulgate clear and unambiguous standards.’ The Secretary has the option
of promulgating specific standards defining the term ‘near’ in various contexts
if he is dissatisfied with the reasonable efforts of employers to enforce the
current regulations.
737 F.2d at 359-60 (citations omitted).
Applying Pennylvarzia Power to this case, the inquiry is whether Myers made a
reasonable attempt to interpret the terms “near” or “adjacent” and, if so, whether those
standards were adequately enforced.
Myers has two safety rules that are particularly applicable.
14
Myers’ Safety Manual states:
8 303 LINE HOSE, INSULATOR HOODS, BLANKETS, LINE GUARDS
(a) Before work begins on or near energized circuits or apparatus, all
live or grounded conductors and surfaces with which an employee can possibly
come in contact (except that portion of the conductor on which work is to be
done) shall be covered with approved protective equipment.
$‘j;O POLES-SE’ITING AND REMOVING
. . . .
(d) While setting or removing poles between or near conductors
energized above 300 volts:
1. If safe clearance cannot be maintained, the conductors shall be de-
energized, covered with protective devices, spread, or a pole guard used to
minimize accidental contact.
.
2. Employees handling the butt of the pole shall wear rubber gloves
with leather protectors and rubber sleeves whether or not cant hooks or slings
are used.
Under section 303(a), even where adequate clearance is maintained, if an employee
“can possibly come in contact” with energized equipment, safety precautions commensurate
with those mandated by 29 C.F.R. 5 1926.955(a)(6) are required. Similarly, under
section 310(d), it is not enough that the crew begins work beyond clearance limits. Rather,
the crew is under a duty to determine if proper clearances can be maintained and, if not,
to take various safety precautions. This would appear to be a valid attempt to implement
29 C.F.R. 8 1926.955(a)(5)(i). Th us, these rules would certainly appear to constitute an
adequate attempt to effectuate the meaning of the terms “near” and “adjacent.” In fact,
nowhere does the Secretary argue that, had these rules been adequately enforced, the
relevant standards would have been violated. We therefore reject the allegation of
vagueness.
V. Item 2, section 1926.955(a) (5) (i)
A. Myers’Argumerlts
Myers argues that the judge erred in affirming item 2 (section 1926.955(a)(5)(i))
because he ignored measures Myers
. took to prevent contact with the energized lines. First,
Myers claims that its employees carefully planned the erection of each pole and thoroughly
studied where the pole was to be erected in relation to the overhead lines. It also points out
15
that two experienced supervisors were assigned to watch the boom, pole, and overhead line
in an attempt to avoid contact.
The record, however, contradicts Myers’ assertion that it took measures to prevent
contact with the energized lines. First, its assertion that it had two foremen on the job
whose task it was to watch the boom, pole, and overhead line in an attempt to avoid contact
is contrary to the record. The record shows that Nye, the crew leader, was across the road
directing traffic. This activity is hardly compatible with watching the position of the boom
in relation to the overhead lines. Similarly, foreman Beard was on the other end of the pole
getting ready to, in his words, “help guide it out across the mess that we were working in
there.” Based on these facts, we conclude that neither of the supervisors was in a position
to devote their attention to the proximity of the boom to the overhead lines.
Moreover, the “survey” by the crew to determine whether the pole could be hoisted
without the boom contacting the lines was certainly not designed to prevent accidental
contact. Rather, the evidence establishes that the crew knew that they were going to be very
close to the lines. Nonetheless, it proceeded under the presumption that they could
maintain a safe distance. We therefore conclude that because the crew failed to take
measures to ensure that there would be no contact with the lines, Myers’ argument is
without merit.
VI. Items 3 and 4
Myers argues that section 1926.955(a)(6) was inapplicable to its work and, therefore,
that items 3 and 4, which alleged violations of subparts of that standard, must be vacated.
Myers relies on Wiico~2sirz Elecrn’c, 567 F.2d at 738, in which the court held that “when the
work is not on overhead lines, and lifting equipment is operated near any energized line or
equipment,” only the requirements of section 1926.952 are applicable. According to Myers,
the evidence is undisputed that, at the time of the accident, the job did not involve any work
on overhead lines.
16
We find the argument to be without merit. In Wiscomirz Electric, the court held that,
while section 1926.952(c)(2)14 applies to trucks and lifting equipment whenever operated
“for any purpose” within a specified distance of any energized lines, the standards at
section 1926.95515 apply “when working on or with overhead lines.” Id. Here it is clear
that the Myers’ employees were working “with overhead lines.” Thus, Myers was required
to comply with the requirements of section 1926.955(a)( 2).(8). This includes the two cited
standards in question: section 1926.955(a)(5)(i), see supra note 3 and section
1926.955(a)(6)(i), see supra note 4.
VII. Willfulness
A. Backgrourrd
In concluding that the violations were willful, the judge found that Nye and his crew
repeatedly disregarded the requirements of the Act while working on the project. Poles
were frequently set up within 2 feet of energized lines but no precautionary measures were
taken. In fact, the judge found that an additional hazard was created by Nye when he
ordered the nylon line replaced with a conductive steel cable over the protests of Shealey
and-Basinger. The judge also found that no effort was made either to get Basinger to wear
insulated gloves or to ground the truck. He concluded that Nye chose to ignore safe
l4 The standard states:
5 1926.952 Mechanical equipment.
...
i)c D em’ck trucks, cranes and orher lifting equipment.
....
(2) With the exception of equipment certified for work on the proper voltage, mechanical equipment
shall not be operated closer to any energized line or equipment than the clearances set forth in
5 1926.950(c) unless:
0i An insulated barrier is installed between the energized part and the mechanical
equipment, or
(ii) The mechanical equipment is grounded, or
(iii) The mechanical equipment is insulated, or
(iv) The mechanical equipment is considered as energized.
l5 5 1926.955 Overhead lines.
(a) Overhead lines. (1) When working on or with overhead lines the provisions of
paragraphs (a)(2) through (8) of this section shall be complied with in addition to other
applicable provisions of this subpart.
17
practices despite his knowledge of the rules. The judge imputed Nye’s behavior to Myers
and found that Myers was plainly indifferent to employee safety.
B. Myers’Argumerlrs
Myers argues that the violations should not be characterized as willful. First, it
observes that the evidence established that the accident was inadvertent. Moreover, Myers
contends that there was no evidence of any actions by the crew that could be characterized
as either a careless disregard or plain indifference to employee safety. According to Myers,
the crew took measures to determine whether it could work safely without insulating the
lines by maintaining the necessary clearance. In those instances where the crew believed
that it could not maintain the proper clearances, it took all precautions necessary to ensure
that the work could proceed safely. Myers points out that the crew insulated the lines while
settingsix or seven of the twenty-seven to twenty-nine poles that had been erected prior to
the accident, including one pole erected earlier on the day of the accident. Furthermore,
Myers argues that the judge incorrectly found that it was common practice for the boom and
new poles to come within 2 feet of uninsulated overhead lines. Rather, it asserts that there
is no evidence of any specific instance where the crew worked closer than 2 feet to the
energized lines without insulating the lines. Myers states that the only evidence that lines
were not properly insulated came from Beard and was contradicted by Nye and Shealey.
C. Analysis
We find that the evidence supports the judge’s conclusion that the violations were
willful.‘6 Having already found that respondent’s affirmative defense of unpreventable
supervisory misconduct is without foundation, we find that the conduct of the foremen is
imputable to Myers. Dover Elevator., 15 BNA OSHC at 1382, 1991 CCH OSHD at
p. 39,849; Consolidated Freighwrs.* 15 BNA at 1321, 1991 CCH OSHD at p. 39,809. The
issue, then, is whether the conduct of Nye and Beard rose to a level of willfulness.
A violation is willful if committed “with intentional, knowing or voluntary disregard
for the requirements of the Act or with plain indifference to employee safety.” lVZmzs
l6 The record establishes that the accident was caused when either the boom or the steel cable from the boom
approached within two feet of the energized line. This is sufficient to establish a prima facie violation of the
standard, regardless of whether the clearance was violated on other occasions. Nonetheless, whether the crew
repeatedly violated the minimum clearance is relevant to our determination of whether the foremen carelessly
disregarded or were plainly indifferent lo employee safety.
18
Entep., 13 BNA OSHC 1249, 1256, 1986-87 CCH OSHD ll 27,893, p. 36,589 (No. 85-355,
1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ll 27,101,
p. 34,948 (No. 79-383, 1984). A willful violation is differentiated from a nonwillful violation
by a heightened awareness, a conscious disregard or plain indifference to employee safety.
General IMotors Corp., Electra-Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD
V 29,240, p. 39,168 (No. 82-630, 199l)(consolidated); Williams, 13 BNA OSHC at 1256-57,
1986-87 CCH OSHD at p. 36,509.
The record amply demonstrates that the crew frequently set poles within the 2-foot,
clearance limits of section 1926.950(c). However, as Myers correctly argues, except for the
accident, there is no hard evidence of any specifically identifiable instance where the crew ..
violated the clearance limits without first insulating the wires. Nonetheless, contrary to.
Myers’ assertion that the only evidence that the crew operated within 2 feet of uninsulated
lines came from Beard, operator Shealey testified that there were occasions where the crew
violated the clearance limits without taking appropriate protective measures:
Q. In the last set of questions by L.E. Myers attorney, you responded to
Mr. McCarthy’s question that on those occasions when you knew you were
coming into or in some situations when you knew you were going to be within
two feet of the wire with the boom, those were times when these wires were
insulated.
A. Yes, some of the time.
Q. Not all of the time?
A. Not all the time, no.
Moreover, as shown by the testimony quoted in notes 7-8, supra, the foremen
gambled that they could maintain adequate distances and thereby avoid insulating the lines,
even when they knew that they were operating very close to those lines.
Therefore, while the record does not establish any particular incident where the crew
violated the minimum clearance without first insulating the lines, it does show not only that
such activity was a regular practice, but also that the foremen engaged in such activities with
.
19
the full knowledge that any misjudgment could result in the crane coming dangerously close
to, or actually making contact with, the energized overhead lines.”
The foremen’s overall lack of concern about safety is further revealed by two separate
lines of evidence. The first line involves the replacement of the nonconductive nylon rope
with the steel cable. When the original nylon rope broke, Nye was apparently irritated by
the time lost in obtaining a replacement. Despite the heightened danger, he chose a steel
replacement because, unlike a nylon line, the steel cable would not break. When Shealey
and Basinger learned that the nylon line was to be replaced by steel, they told foreman
Beard that they were concerned about the hazard it posed because they were working so
close to energized lines. Beard testified that he relayed the employees’ concerns to Nye who
just shrugged and walked away. According to Beard, “[h]e didn’t seem to care what they
” Myers also argues that the judge erroneously credited Beard’s testimony that the pole in question was to
be set 8 to 12 inches from the outside energized line. Myers points out that Nye testified that the line was
over 3 feet from where the new pole was to be set. The judge gave no reason for accepting the testimony of
Beard over that of Nye. If accepting the testimony of Beard over that of Nye constituted a credibility
determination, the Commission would generally defer to the judge because it is the judge who has lived with
the c&e, heard the witnesses, and observed their demeanor. Kenr Nowlin Constr., 8 BNA OSHC 1286, 1289,
1980 CCH OSHD ll 24,459, p. 29,865 (No. 7&19I)(consolidated). However, a valid credibility determination
requires some support. See P & 2 Co., 6 BNA OSHC 1189, 1192, 1976-77 CCH OSHD ll 20,728, p. 24,854
(No. 76431, 1977). Not only did the judge fail to give any reason for rejecting this evidence, but, in his
decision, the judge appears to have totally ignored all of Nye’s testimony. Therefore, the judge’s‘ finding
cannot be mnsidered a credibility determination to which the Commission must defer.
We agree with Myers that the weight of the evidence does not support the judge’s finding that, at the time
of the accident, the new pole was to be erected within 2 feet of the energized lines. The testimony of the
surviving crew members would indicate that they would insulate the lines when it was clear that they would
be well within the clearance limits. Therefore, had the poles been only 8 to 12 inches apart, it is likely that
the crew would have insisted on insulating the energized lines. Moreover, Shealey’s testimony indicates that,
while he estimated that they had a 1.5 to 2-foot clearance, he was too far away to be sure of the clearance and,
in any event, the distance was close enough to the 2-foot limit that they were willing to take a chance.
Finally, the strongest support for Nve’s undisputed assertion that there was a 3-foot clearance comes from his
testimony that, when finally erected. the new pole was 3.5 feet away from the old pole.
Although we find that the judge erred in finding that the new pole was to be set within 8 to 12 inches of the
energizedlines, we find the error to be harmless. First, reversing the judge on this point has no real effect
on the validity of any of the charges. Regardless of the intended distance between the old and new poles
involved in the accident, the relevant fact is that either the boom or the cable attached to the boom came
within the minimum clearance, resulting in the death of an employee. Moreover, while the proximity of the
new pole to the energized lines is relevant to the state of mind of the foremen, and therefore the
characterization of the violation, the evidence, as previously noted, does establish that on other occasions the
crew knowingly operated either within the 2-foot clearance or in dangerously close proximity to the clearance
limit without taking proper protective measures.
.
3n
thought.” Nye, however, denied ever being told about the employees@fears and testified that
he didn’t consider steel cables to present a hazard.
Although the judge found that Beard told Nye about the employee complaints, he did
not couch the.finding in terms of a credibility determination. We note, however, that Nye’s
testimony, in general, appears to be noncredible. Throughout his testimony, Nye denies any
facts that would either place blame on himself or weaken Myers’case. For example, Nye
denied that the crew was under any time pressures. He further testified, contrary to the
clear testimony of Shealey and Beard, that the crew would insulate the lines whenever they
would come within 3 feet of the lines. We also note that, unlike Nye, Beard gave testimony
against his own interest by indicating that he failed to enforce the relevant work rules that
would have required Basinger to wear insulated gloves. This, by itself, lends credrbility to
Beard’s testimony on this point.
Even were the ammission to consider Nye’s testimony about the cable to be truthful,
there is other evidence about this incident that demonstrates a disregard for employee safety.
It is undisputed that not only was Basinger not wearing gloves at the time of the accident,
but also tBat hc never wore gloves. Foreman Beard knew that Basinger was not wearing
gloves. Moreover, both Basinger and Shealey had expressed to Beard their concern about
working with a steel cable in close proximity to the energized lines. Nonetheless, Beard
made no effort to get Basinger to wear gloves and later admitted that, had he been wearing .
them, they probably would have saved his life. Furthermore, Nye testified that he saw
Basinger at the time of the accident, and that he was aware that Basinger had the steel cable
in his hand. Nonetheless, he made no effort to stop the work to insist that Basinger put on
the appropriate protection. This failure to insist that Basinger don his gloves plainly
constituted no less than a conscious disregard for employee safety.
Other evidence also establishes that the attitude of the foremen towards insulating
the lines disregarded employee safety. As discussed earlier, Shealey and Beard both testified
that the crew, in essence, gambled that it could maintain proper clearance without insulating
the lines. As Beard testified, they did not give themselves much of a margin for error.
Myers correctly points out that the crew insulated six to seven poles before the fatal
accident. However, the evidence shows that the decision to insulate was made only when
the work would require the crew to work so close to the lines that there was no question
21
that a failure to insulate would present a grave risk. In fact, in regard to the much touted
insulating of the lines on a pole earlier in the day, the evidence shows that Nye resisted the
precautions, finally submitting only when Beard insisted that the lines be insulated. As it
turned out, when erecting the pole in that instance, the crew was working directly in the
energized wire.
This willingness to gamble with the safety of the crew demonstrates a conscious, if not
reckless, disregard for employee safety. Similarly, the willingness of Nye to gamble with the
proximity to the lines and his failure to order the grounding or barricading of the truck also
constitute a conscious disregard of employee safety.
In short, the record amply supports the Judge’s conclusion that all the violations were
properly classified by the Secretary as willful.
VIII. Penalties
Judge Brady assessed the maximum18 penalty of $10,000 for each of the four willful
violations of the Act. Myers argues that, given its demonstrated safety program, and the
measures it took to ensure that the work proceeded safely, the penalties assessed by the
judge were too high and that, at most, a minimal penalty should be imposed. We disagree.
The evidence relevant to the four factors in section 17(j) of the Act, 29 U.S.C.
0 666(j), strongly supports the imposition of a sizeable penaltv.4 Myers is a large company
with approximately 800 employees. Moreover, as recounted earlier, not only does Myers
have a substantial history of OSHA violations, but it also has suffered several fatalities in
incidents similar to the accident here. This history shows that despite the appearance of a
substantial safety program on papt:r, in reality the program is substantially deficient in estab-
lishing the safeguards necessam for the protection
l
of its employees. Moreover, the entire
attitude demonstrated by its foremen displayed a notable lack of good faith toward employee
safety.
However, although we ~uld affirm penalties of $10,000 each for items 3 and 4 of
the citation, it appears that item 1. which alleges a failure to maintain minimum clearances
l8 We note that under an amendment to the Act since this citation was issued, the maximum penalties have
been raised to $70,000 for each willful violation of the Act. Section 17 of the Act. 29 USC. 5 666, amended
by Omnibus Reconciliation Act of 1990, Pub. L. No. 101-508, 8 3101 (1990).
22
from energized lines, and item 2, which alleges a failure to take steps to ensure that
minimum clearance is maintained from energized lines, are substantially similar violations,
both of which could be abated by a single action. The Commission has wide discretion in
the assessment of penalties for distinct but overlapping.violations and we have held that it
is appropriate to assess a single penalty for such related violations. A.P. O’Hbro Co., 14
BNA OSHC 2004, 2013, 1991 CCH OSHD li 29,223, p. 39,134 (No. 85-369, 1991); Wright
& Lopez, Inc., 10 BNA OSHC 1108, 1112, 1981 CCH OSHD II 25,728, p. 32,077 (No. 76-256,
1981); H.H. HaZZConstr., 10 BNA OSHC 1042, 1046, 1981 CCH OSHD ll 25,712, p. 32,056
(No. 76-4765, 1981). Therefore, we will assess a combined penalty of $10,000 for items 1
and 2.
IX. Order
Accordingly, the judge’s decision is affirmed. Items 1-4 of the willful citation are
affirmed, and a total penalty of $30,000 is assessed.
Chairman
\
,
/’ c*
->
Y (d 7 4
DEnaId G. Wiseman
Commissioner
Velma Montoya
Commissioner
Dated: March 31, 1993
UNITED STATE5 3- Ar,J,ri ;A
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 k ST';IEE' ',A
.:Tc!F! (-.',;4
WASHING?OrJ ;- ?r,, t 336
SECRETARY OF LABOR, ..
Complainant, ..
v. .. Docket So. YO-945
L. E. Myers Company, ..
.
Respondent.
.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
March 31,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.
FOR THE COMMISSION
March 31, 1993
Date
Executive Secretarv d
Docket No. 90-945
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Timothy C. McCarthy, Esq.
Shumaker, Loop & Kendrick
North Courthouse Square
1000 Jackson
Toledo, OH 43624
Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL Q4FEl-Y AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4Tt-l FLOOR
WASHINGTUN DC. 20006-I 246
. FAX.
COM (202) 6344008
Secretary of Labor, .. FE 634 - 4008
Complainant, :
v. .. Docket No. 90-945
The L. E. Myers Company, :
Respondent. :
.
The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on August 2, 1991. The decision of the Judge will become a final order of the
Commission on September 3, 1991 unless a Commission member directs review of the decision
on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition
should be received by the Executive Secretary on or before August 22,199l in order to permit
sufficient time for its review. See Commission Rule 91, 29 C.F.R. Q 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St., N.W., Room 401
Washington, 0. C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsei for Regional Trial Litigation
office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial
Litigation will represent the Department of Labor. Any party having questions about review rights
may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION
August 2, 1991
Date
Executive Secretary
Docket No. 90-0945
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Timothy C. McCarthy, Esq.
Shumaker, Loop & Kendrick
North Courthouse Square
1000 Jackson
Toledo, OH 43624
Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET N E SNE 240
ATLANTA, GEORGIA 30309 2 ? ‘9
PHONE FAX
COM(404) 347-b197 cold (404) 347-01:3
ns 257-4086 f% 257-0113
SECRETARY OF LABOR, 1
1
Complainant, 1
1
v. ) OSHRC Docket No. go-945
1
THE L. E. MYERS COMPANY, )
1
Respondent. 1
APPEARANCES:
Christopher J. Carney, Esquire, Office of
the Solicitor, U. S. Department of Labor,
Cleveland, Ohio, on behalf of complainant.
Timothy C. McCarthy, Esquire, Shumaker,
Loop and Kendrick, Toledo, Ohio, on behalf
of respondent.
DECISION AND ORDER
BRADY, Judge: On February 28, 1990, the L. E. Myers
Company (Myers) was issued three citations for alleged
violations discovered during the course of an inspection by
Bill Wiggins, a compliance officer for OSHA. The inspection
was conducted pursuant to a fatality that occurred on
September 11, 1989.
Prior to the hearing, the parties resolved Citations No.
1 and No. 3. Citation No. 2 alleges four separate willful
violations of standards found in Subpart V (l!Power
Transmission and Distribution") of Part 1926. Item 1 alleges
a willful violation of 29 C.F.R. 5 1926.950(c)(2)(i) for
violating minimum working distances adjacent to energized
lines as specified by the standard.‘ Item 2 alleges a willful
violation of 29 C.F.R. § 1926.955(a)(S)(i) for failing to take
precautions to avoid contact with energized lines when setting
poles, using a boom truck. Item 3 alleges a willful violation
of 29 C.F.R. § 1926.955(a)(6)(i) for failing to ensure that
employees standing on the ground and contacting equipment
adjacent to energized lines were using suitable protective
equipment. Item 4 alleges a willful violation of 29 C.F.R. S
1926.955(a)(6)(U) for failing to ground or barricade the boom
truck when used near energized lines.
Myers is an electrical contractor employing approximately
800 employees (Tr. 200.). In September of 1989, it was under
contract with the City of Napoleon, Ohio, to upgrade and
rebuild an electrical transmission and distribution line along
a five and one-half mile stretch on State Route 424 in
Napoleon. The project required the replacement of all of the
wires and almost all of the utility poles (Tr. 13-14). Under
the terms of the contract,, the electrical wires were to remain
energized so as not to interrupt electrical service to
customers in the area (Tr. 14).
Myers' crew on the project consisted of Dennis Bassinger,
a third step apprentice, Chuck Shealey, a mechanic-operator,
2
Jack Beard, a working foreman, and Eldon Nye, the general
foreman (Tr. 44, 333). This crew was shorthanded (Tr. 46, 790
80) l
The existing lines were 17 feet to 20 feet high, and were
mounted on poles 30 to 35 feet tall (Ex. C-6, Tre 16-17, 146,
150). The new poles were to be higher, ranging from 35 to 45
feet (Tr. 16). The existing line was a three-phase line on
eight-foot crossarms, with the three wires spaced
approximately four feet apart (Tr. 18). Both before and after
the project, the lines were to carry 12,470 volts (Tr. 17)e
By design, the new poles were set close to the existing wires
(Tr. 18)e A number of poles were set within two feet of the
existing wires (Tr l 48 I 71) l The poles were hoisted into
place by way of a pole truck. The truck had a hydraulic
extension boom with a steel claw attachment (Tr. 19).
On Monday, September 11, 1989, Dennis Bassinger was
electrocuted while in the process of setting a new pole. At
the time of the accident, Bassinger was holding onto the steel
wench cable (Tr. 50-52). Bassinger was in the process of
wrapping the cable around a pole that was to be hoisted into
the set position (Tr. 50-53). The pole was to be set between
8 to 12 inches from the phase nearest the road (Tr. 78). The
phase had not been insulated (Tr. 78-82).
The steel wench Bassinger was holding at the time of the
accident had been installed on the Thursday prior to the
Monday accident (Tr. 49, 72074)e Prior to that time, the
3
employees had used a non-conductive nylon sling (Tr, 49, 72-
74) l The nylon sling had broken three days before the
accident and had been replaced with the steel wench (Tr. 74).
Bassinger and Shealey expressed reservations about working
with the steel wench to Beard, and requested that the job be
shut down (Tr, 50-51, 74). Beard related these concerns to
Eldon Nye, who shrugged his shoulders and walked away (Tr. 74-
75) l
At the time of the accident, Shealey was operating the
pole truck, Nye was flagging oncoming traffic and Beard was
positioning himself to help set the pole. The boom was
extended so that it had approximately one foot of "play" to
the left and to the right of center (Tr. 52-53). When he was
electrocuted, Bassinger was pulling on the steel wench in
order to get more cable (Tr. 53-54)e
Myers had set approximately 30 poles prior to the
accident. Bassinger never wore rubber gloves during this time
(Tr 0 57 I 60 / 82) l The pole truck was never grounded or
barricaded during the Napoleon job (Tr. 56, 84, 124.125). The
boom and the new poles occasionally came within two feet of
the energized wires but the wires were not always insulated on
those occasions (Tr. 52, 71, 76, 78).
Beard testified that the crew insulated wires only when
it was obvious to them that they would contact the energized
wires during the pole setting process+ He stated it would
have taken too long to insulate all the wires since the truck
4
needed for that purpose had been parked farther down the road
to warn oncoming traffic of work in the area (Tr. 76, 79)e
ITEM 1: 29 C.F.R. § 1926.950(c)(2)(i)
29 CeF.Re S 1926.950(c)(2)(i) provides:
The minimum working distance and minimum clear hot
stick distances stated in Table V-l shall not be
violated, The minimum clear hot stick distance is
that for the use of live-line tools held by linemen
when performing live-line work.
Table V-l ("Alternating
* Current -- Minimum Distances")
requires a two-foot minimum working distance while working
adjacent to energized conductors up to 15,000 volts.
Dennis Bassinger was electrocuted while holding a steel
wench that was attached to the boom of the pole truck (Tr. SO-
52) l The boom contacted a 12,470 volt energized phase while
Bassinger was in the process of wrapping the cable around a
pole that was to be set (Tr. 50-52). Bassinger was not
wearing his rubber insulated gloves nor was he otherwise
insulated from the energized lines (Tr. 57, 60, 78-82).
Bassinger never wore insulated gloves while working on
the Napoleon project (Tr. 52).
Myers argues that its crew was not working on the
overhead lines, nor was it working within two feet of those
lines, The crew was erecting poles near the lines, but
according to its "work plan", the truck's boom was not to come
within more than three feet of the energized lines. Myers
5
argues that S 1926,950(c)(2)(i) was not violated because the
crew did not intend to qet
m closer than three feet to the
energized lines and that the work did not require them to get
any closer.
This argument is specious and without merit, There is
nothing in the standard that speaks to the '5ntent" of the
work crew in performing its work. The standard specifically
states that, for the voltage of the lines in question, a
minimum of two feet of clearance must be maintained.
Furthermore, the record establishes that it was not uncommon
for the crew to come within two feet of the energized lines
when setting the poles. Whatever Myers' Vntent" at the
commencement of the project, it was clear by the day of the
fatality that the boom was coming within the two-foot minimum
distance for the setting of many poles.
The Secretary has established that Myers was in violation
of S 1926.950(c)(2)(i).
ITEM 2: 29 CeFeRe § 1926.955(a)(S)(i)
29 C.FeR. S; 1926.955(a)(S)(i) provides:
When setting, moving, or removing poles using
cranes, derricks, gin poles, A-frames, or other
mechanized equipment near energized lines or
equipment, precautions shall be taken to avoid
contact with energized lines or equipment, except in
barehand live-line work, or where barriers or
protective devices are used.
6
Myers was required to set poles near existing energized
1irES l At times, poles were being set inside existing wires
(Tr l
1 8)
l Other poles were set within two feet of the
existing phases (Tr. 48). Dennis Bassinger, whose job it was
to help set the poles, never wore gloves on the project (Tr,
57 8 59 I 82) l The energized lines were only occasionally
insulated. Beard testified that the pole that the crew was
setting at the time of Bassinger's electrocution was "within
eight inches to a foot" away from the energized line, yet the
line was not insulated (Tr. 78).
Myers argues that it took precautions in compliance with
S 1926.955(a)(S)(i). Myers argues that its work crew made a
thorough study of the location where the pole was to be
erected in relation to the overhead line. This argument is
not borne out by the record. The evidence establishes that
the decision to insulate the lines when setting any given pole
was more a hit-or-miss proposition. In fact, for the setting
of the pole previous to the one on which Bassinger was
electrocuted, NYe I the man in charge of the crew, had not
wanted to insulate the wire. It was insulated only at the
insistence of Beard, who stated, "1 was glad we did because as
it turned out, we were right directly in the wire" (Tr. 77).
Beard testified that because the crew was shorthanded and that
it would have "taken forever" to insulate the lines for every
pole, the crew was not giving itself any margin for error (Tr.
79) l
7
Myers also argues that it had stationed %a0 very
experienced, safety conscious supervisors to watch the boom,
pole and overhead line in an attempt to avoid contact" (Myers
brief, p. 22). Again, the record does not reflect this, NYe 8
the man who shrugged his shoulders and walked away when told
of employee concerns regarding the steel wench, does not
appear to have been greatly concerned with the possibility of
contact with the energized lines, Nye was flagging traffic at
the time of the electrocution, and was not monitoring the
boom, the poles, or the overhead lines (Tr. 80, 95)e
The Secretary has established that Myers was in violation
of $ 1926.955(a)(S)(i).
l
ITEM 3: 29 CoFeR. S 1926,955(a)(6)(i)
29 C.F.R. S 1926.955(a)(6)(i) provides:
Unless using suitable protective equipment for the
voltage involved, employees standing on the ground
shall avoid contacting equipment or machinery
working adjacent to energized lines or equipment.
Bassinger 3 job was to prepare the pole to be set in the
ground. This required him to wrap the steel wench around the
conductive pole. Yet, Bassinger never wore protective gloves
on the project. Beard, the working foreman on the crew, was
aware that Bassinger was not wearing gloves but never told him
to wear theme Beard stated, "1 didn't pay no attention as to
whether he had his gloves on or not. I had my gloves on."
(Tr. 96)e
8
Myers was in violation of 5 1926.955(a)(6)(i).
ITEM 4: 29 CeFeRe § 1926.955(a)(6)(ii)
29 CoFeR* § 1926,955(a)(6)(ii) provides:
Lifting equipment shall be bonded to an effective
ground or it shall be considered energized and
barricaded when utilized near energized equipment or
lines,
The evidence was undisputed that the truck was not
grounded or barricaded at any time during the course of the
Napoleon project (Tr. 55, 84)e
l The Secretary has established that Myers was in violation
of S 1926.955(a)(6)(ii).
MYERS' DEFENSE
Myers argues that it did not violate any of the standards
under ‘5 1926.955 for which it has been cited. First, Myers
argues that. because it was not working directly on the
energized lines, but was only setting new poles near the
existing lines, § 1926.955 does not apply. This argument is
rejected. Section 1926e-955(a)(5)(i) provides that "[w]hen
setting e 0 l poles using l ee derricks .e. near energized lines
l l l " (emphasis added) that precautions shall be taken. There
is nothing vague or confusing about that standard. In the
present case, Myers was unquestionably setting poles near
energized lines. Section 1926.955(a)(6)(i) requires that
9
suitable protective equipment be used by employees standing on
the ground and contacting equipment or machinery "adjacent to
energized lines," It is clear in the present case that the
crew was continually working adjacent to energized lines.
Section 1926.955(a)(6)(ii) requires that lifting equipment be
grounded or barricaded "when utilized near energized l l l
lines? Again, the boom truck was used near adjacent
energized lines. Under the circumstances of the project, the
words %eaP and lladjacentl'clearly applied.
Myers also argues that any violation of the standards was
the result of unpreventable employee error on the part of the
pole truck operator who brought the boom within the two-foot
minimum distance of the energized lines. This argument
ignores the abundant evidence that it was cormnon practice for
the crew, including the foreman and the general foreman, to
set up poles within two feet of the energized lines,
Furthermore, the attribution of employee error in making
contact between the boom and the line has no bearing on Myers'
violation of S 1926.955(a)(6)(i) and (ii). Even if contact
between the boom and the wire had never taken place, Myers
still did not require suitable protective equipment for its
employees on the ground, nor did it ground or barricade the
boom truck.
Finally, Myers argues that any violations of the cited
standards were the result of unpreventable misconduct by its
supervisors, and that the acts of its supervisors are not
10
imputable to Myers, lt[W]here a supervisory employee is
involved in the violation, the proof of unpreventable employee
misconduct is more rigorous and the defense is more difficult
to establish since it is the supervisor's duty to protect the
safety of employees under his supervision.V1 Daniel
Construction CO.1 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH
OSHD '1126,027, pe 32,672 (NOe 16265, 1982).
Myers argues that its supervisors are given special
safety training sessions and that each foreman is issued a
safety kit that includes Myers' Safety Manual (Ex. R-8). To
prove the defense of unpreventable employee misconduct, the
employer must show that "it had work rules that were intended
to prevent the violation, that those rules were adequately
communicated to its employees, and that the rules were
effectively enforced." Ormet Corp., OSAHRC 8 14
BNA OSHC 2134, 2138, 1991 CCH OSHD fl29,254 (No. 85-531, 1991).
Effective enforcement of work rules requires that some
disciplinary action be taken by the employer when a violation
of the work rules occurs. He stated that he had never
received any discipline for any violation of Myers' safety
rules or procedures (Tr. 393) l If Myers believed that the
violations at issue were the result of supervisory
misconduct, it did not take any steps to enforce its work
rules that it claims were violated. It must be concluded that
the actions of the supervisory personnel on the Napoleon crew
11
were responsible for the violations and are imputable to
Myers.
WILLFULNESS DETERMINATION
The Secretary has alleged that Myers was in willful
violation of the cited standards. Willfulness is a state of
mind,
A violation of the Act is willful if "it was
committed voluntarily with either an intentional
disregard for the requirements of the Act or plain
indifference to employee safety." Simplex time
Recorder CO., 12 BNA OSHC 1591, 1595, 1984-85 CCH
OSHC 927,456, P . 35,571 (No 82-12, 1985). Trial of
l
the issue of willfulness focuses on the employer's
state of mind and general attitude toward employee
safety to a greater extent than would trial of a
nonwillful violation. Seward Motor Freight, 13 BNA
OSHC 2230, 2234, 1989 CCH OSHD 928,509, p: 37,787
(No. 86-691, 1989). ,
E. L. Jones and Son, Inc., OSAHRC , 14 BNA OSHC 2129,
2133, 1991 CCH OSHD n29,264 (NO. 87-8, 1991)e
The record establishes that Nye and his crew repeatedly
disregarded the requirements of the Act while working on the
Napoleon project. Poles were set up within two feet of
energized lines without first insulating the lines. No
precautionary measures were taken on many occasions when the
poles were being set. In fact, an additional hazard was
introduced when Nye replaced the broken nylon sling with a
steel wench, over the protests of Shealey and Bassinger. No
effortwas made to require Bassinger to wear his gloves or to
12
ground the truck, even though either one of these precautions
may well have prevented Bassinger's death,
Nye has worked for Myers since 1965 (Tr. 337)e He was
aware of the requirements of the Act, as well as Myers' own
safety IXlleS, That he chose to ignore safe practices despite
his knowledge and experience shows his, and by imputation,
Myers' plain indifference to employee safety. Myers was in
willful violation of the cited standards in Items 1, 2, 3 and
4 of Citation No. 2.
PENALTIES
The Commission is the final arbiter of penalties in all
contested cases, Secretary Ve OSAHRC and Interstate Glass
co l 8 487 F.2d 438 (8th Cir. 1973)e Under section 17(j) of the
Act, the Commission is required to find and give Itdue
ConsideratiorP to the size of the employer's business, the
gravity of the violation, the good faith of the employer, and
the history of previous violations in determining the
appropriate penalty. The gravity of the offense is the
principal factor to be considered, Nacirema Operating COe, 72
OSAHRC l/BlO, 1 BNA OSHC 1001, 1971-l-973 CCH OSHD 915,032
(NO. 4, 1972)e
Upon due consideration of the above-mentioned factors, it
is determined that the following proposed penalties are
appropriate:
13
Item 1 $10,000.00
Item 2 10,000.00
Item 3 10,000.00
Item 4 10,000.00
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of facts
and conclusions of law in accordance with Rule 52(a) of the
Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is hereby ORDERED:
1 l That items contained within Citation Nos. 1 and 3 be
disposed of in accordance with the settlement agreement
entered into by the parties,
2 l That Item 1 of Citation No. 2 for violation of 29
C.F.R. S 1926.950(c)(2)(i) is affirmed and a penalty in the
amount of $lO,OOO.OO is hereby assessed,
30 That Item 2 of Citation No. 2 for violation of 29
C.F.R. § 1926.955(a)(S)(i) is affirmed and a penalty in the
amount of $lO,OOO.OO is hereby assessed,
4 l That Item 3 of Citation No. 2 for violation of 29
C.F.R. § 1926.955(a)(6)(i) is affirmed and a penalty in the
amount of $lO,OOO.OO is hereby assessed, and
50 That Item 4 of Citation No. 2 for violation of 29
14
C.F.R. S 1926.955(a)(6)(ii) is affirmed and a penalty in the
amount of $lO,OOO.OO is hereby a
Date: July 15, 1991
/
15
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