L.G. Defelice, Inc.

Plain-English summary

L.G. Defelice was rehabilitating a section of Interstate 70 near Washington, Pennsylvania, where heavy equipment regularly passed beneath overhead electrical lines. Two machines contacted the lines in separate incidents, and the judge found that Defelice had not trained employees on the specific clearance distances needed to avoid the hazard. She affirmed the safety-program item and the power-line-clearance item as serious, but rejected the willful classification because the company held a good-faith, though incorrect, belief that a four-foot transit clearance applied. The employee-misconduct defense failed because the company's rule was too general and was not effectively enforced. A backup-alarm item was vacated because OSHA did not disprove that a signal observer directed the trucks, and the inspection-program item was vacated because qualified personnel regularly inspected the site. A cracked-windshield item was also vacated because OSHA did not show that the cracks distorted the operator's view. Total penalties were $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.601(b)(4), 1926.20(b)(1), 1926.20(b)(2), 1926.550(a)(15)(i), and 1926.550(a)(12).
• Outcome: Mixed. Two serious items were affirmed and three items were vacated, with total penalties of $5,000.
• Key point: A general warning about electrical hazards did not adequately train employees on required clearances, but a reasonable good-faith misreading of the transit rule defeated willfulness.

Full text (OSHRC public release)

                      UNITED
                           STAfESOi: AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COhdhbisSION
One Lafayette Cents
1120 20th Strwt, N.W. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3349
L. G. DEFELICE
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 25, 1994. The decision of the Judge
will become a final order of the Commission on March 28, 1994 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 b the Executive Secretary on or before
March 17, 1994 in order to ermit suff?cient time for its review. See
Commission Rule 91, 29 C.F .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Wqhington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So7 icitor, U.S. DOgL
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
halng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 6063400.
FOR
A THE COMMISSION

Date: February 25, 1994 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-3349
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for Rt ‘onal Trial L,iti ation
Office of the SoeQ‘citor, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

Charles R. Volk, Esq.
Jane L. Volk
Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt
Three Gateway Center, 15th Flr.
East
Pittsburgh, PA 15222

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an d Health
Revrew Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00116042722:03
 OCCUPATIONAL SAFETY AND HEALTH REVlEW COMMISSION
1365 PEACHTREE STREET, NE, SUITE 240
ATLANTA, GEORGIA 30309-3119

SECRETARY OF LABOR

          complainant, .
          v.                                          OSHRC Docket No. 92-3349

L G. DEFELICE, INC.,
Respondent.

APPEARANcEs:

   Anita E~lltWright, Esquire                         clMub R vollr, Bquile
    omx of the soudtor                                JaneL Vo& lapire
    U. S Departmentof I&or                              VoUc,Frankada Anaakis,Rccht,
    Philaddphi&Pennsyhgnia                               Robavson dt Hdkrstdt
       For Complainant                                  Pittsb~    PeIlnsyhw
                                                          Fbr Respondent

Before: Administrative Law Judge Nancy J. Spies

                            DECISION AND ORDER


   L G. Dcfelicc, Inc. (Defelicc), is a prime contractor specializing in highway

construction pr. 381). It was the general contractor’s job to rehabilitate and, where
necessary, to replace specific portions of roadway and bridges along a two-mile stretch of
Interstate I-70 near Washington, Pennsylvania rr. l&12,77).
On August 24 and 25,1992, Occupational Safety and Health Administration (OS)
Compliance OBer Vance Delsignore conducted a referral inspection of Defelice under the
Occupational Safety and Health Act of 1970 (Act). The Secretary alleges that Defelice was
in serious viol8tion of H 1~6Ol(lQo(~ 192azo@)(lh and 1926zo@)(2)Q opera- a

truck without a backup alarm or obener, and that its dety program and inspection of its
jobsite were defihnt. He alkgcs a willfulviolation of 8 192635O(a)(15)(i)for hilure TV
maint8ina lodoot clearanceof electrical lines and an “other” than serious violation of
8 1926.5SO(a)(l2) for alleged distortions in a tie windshield Defelice denies that the
conditionscited constituted violationsm

                     ALLEGEDSERIOUS CITATIONNO. 1

                             Item la: 6 19260601Cbm


   The Secretary charges Defelice with a violation of 0 1926.601(b)(4) for failure to have

operational backup alarms or signal observers on two trucks owned and operated by
Defeke. Delsignore asserts that one of its employees was directing the backup operation
The standard rquires:
(4) No employer shaIl use 81l)rmotor vehicle quipment having an obstructed
view to the rear unless: (i) The vehicle has a reverse signal alarm audiiiiiik
above the surrounding noise level orz (ii) The vehicle is backed up only when
an observer signals that it is saft to do so.

   Delsignore and Defelice Vice-President Jonathan Miller, who was a part of the

walk-around party, observed a t&axle dump truck backing up without a functioning alarm.
Miller asked the driver if he had checked the alarm the previous morning and the driver
informed Miller he had (Tr. 250). A second dump truck had pulled into the area and was
waiting to be ElIed with dirt (M7). In an attempt to convince Delsignore that the lack of
an alarm on the first truck was a “fluke,” Miller directed the second dump truck to back up.
The backup alarm on that truck likewise did not operate (Tr. 268). MiIler radioed for a
mechanic, and the alarms were immediately repaired.
Although not an issue raised during the inspection, Miller contends that foreman
Nelson Kletski was standing within 15 feet of the dump truck on the right side of the truck,
directing the driver (Tr. 248-249). Miller testified that the driver was observing the
signalman through his right-hand mirror.

                                          2

Wr wne d&-g backup operations as Dcfelicc attests? Ddsigno~ cmthe
other hand, tccIIfkd that “a foreman” (whom be incorrectly identbd as Gregory Nunes)
was 50 to 6obtfrom the truc~%alking around and talking with different people that were
working them at tbe jobsite” (Tr. 60,125). Delsigaore,who believed someone told him that
the foreman’s name was Gregory NUNS, considered the foreman to be the exposed
employee. At one point in his testimony,Delsignorerecalled that an empm was so&&
within 15 fttt d the truck (‘I’r.59). while Delsignore was tirm in his recollection that no
one was directing the dump trucks or keeping people a-y dramstanding behind the trucb,
he did not speak with the operator or anyone ek at this job location Ft. 12442S).
Defelice maintained not only that Kletski was directing the dump truc& but that it
was its general policy to assign a signal person to direct the trucks QI’r.251). Neither party
presented the testimony of the operator or Kletski. Delsignore’s misidentificatbn ofKktski
indicates a less than precise observation of the scene. Whether the vehicle bwked up only
when an observer signaled that it was safe to do so is a disputed matter between twrs
eyewitnesses, one of whom spoke to the operator and was f&nil&rwith its operbn. The
Secretary has f&d to carry his burden of proof that the violation occurred. The vi&&n
is vacated

               Items lb and lc: 4 1926.20&~1\ and 4 192QO(b)a


   The secretary alleges that Defelice violated 8 1926.20(b)(l) for f&lure to enforce its

written safety program and 9 192620(b)(2) for failure to sufficiently inspect the work&e to ’
eliminate hazards. Admitting that Defelice had an adequate safety program uon paper,”the
Secretary maintains that it did not translate its written program to the field.
The standards provide:
m(b) lt4x&ntprwention n%y?mibilirics.

   (1) It shall be the responsibility of the employer to initiate and maintain such
   programs as may be necessary to comply with this part.

(2) Such ~to~~rzu~l~
halI provide for frequent and regular inspcction~by
competent persons designatedby the employen.

   IBefkke correctly asserts that the simple f&t that other violations occured at a

worksite does not establish that an employer had defectivt safety or inspection pqrams.
However,proof CWIIIIIO~
to other violations may establish 9 192&20(b)vioMions without
being duplicative. J. A. Jonc~ @nst~tiim co., 15 BNA OSHC 2201,1993 CCH OSHD
II 29,964(No. 87-2059,1993)8
Because 3 192620@)is a general standard, the Cmmission and the courts have held
that an employer must instruct its employees in the recognition and avoidance of hazards
which a reasonably prudent employer would have been aware. The ‘Msonably prudent
employer” standard applies equally to safety inspection of worksites. E&, R&R B@i&
Inc., 15 BNA OSHC 1383,199l CCH OSHD 129,531 (No. 88-m l991);A. R O’Horr,Ca,
14 BNA-OSHC2004,199l CCH OSHD q 29,223 (No. 8%369,199l). AMmughgrouped
with item 1 (no backup alarm), Delsignore explained that the alleged inadcqyaq of the
safety program and inspections also related to employees workingunder overhead elect&al
lines (Tr. 64,66).
In order to comply with 8 19262O(b)(l), employees must be instructed on dangerous
conditions that they may reasonably be expected to encounter in their workplace. Three
ekctrical lines crossed the main acussway, which was near the top of a rise, at heights of
22 to 23 feet (Tr. 154). The heavy equipment which regularly traveled the accesswaywas
more than 11 feet high in its lowestcon@ration ur. 239,241). Aworksite having less than
an 11.fmt ckarancc between overhead ekctrical wires and equipment wu the type of
hazard a rcasonabk employer would identify and train employees to avoid.
Defelicc had a safety orientation program and conducted weekly safety meetin@
Employees were required to attend and to veri@ their attendance at meetings. The safety
instructionrelating to overhead electrical lines, however, was only a most general admonition
to “approach and handle” high voltage lines taking “complete precautions” (Exh. Cl,
pg. 11). Defelice relies heavily on the fact that a 4-foot clearance requirement applied to

                                         4

the facts of this case, Yet emplqccs wltre not inslnctcd on either the distances of the 4
fmt or lO-fti ckarana requirements or on the cirmtanw under Whichthe varying
d&we rcquimmnts wwiklapply. The fact that a vetem 459ar crane operator may be
able to ~MCWW the area does not relieve Dcfelice of its responsibility to train its
emplqw on appropriate clearancc~. It should hvt relied not on the skill of one employee
but upon a spcci6csafety rule known by all its employca Since Defelicc’ssupavisors were
aware of the specifichazard but fkiled to train employeesin reaq+iqandavoidingit,the
company had kwwkdge of the inadequacy of its training program. A violation of this
standard is serious if the specific deficiency (k, ektrical shock) isserious. EkctrW shoclt
results in death or seriOusbodiiy injury. The Secretaxy has established a serious violation
of 5 1926.20(b)(l). Defelice employs 200 workers, half of whom worked on the Washington
project. Defelice had a history of previous serious violations (Tr. SO). The gravityaf the
violation is high (Tr. 208,343). A penalty of $1,000 is assesH.
The standard at 0 1926.20(b)(2) rquires frequent inspections by a competent pe1~0n.
Francis Nations, operations superintendent, and other management ~CZSCM&,in&ding
Jonathan Miller, testified that they regularly inspected the j&site (Tr. 230). D&eke further
relies on the fact that a technical consultant with its insurance carrier ded the WorlDift
on several occasions. In fact, management had identified the existence of the overhead lines
as a potential hazard and had discussed how these and other electrical lines should be dealt
with (“I?. 230-231,371,373). Its supen&ors’ assessment of the hazard was fMty since they
“decided to not use insulation because of the limited amount of work being done around
[the wires]” (Tr. 231). Their error in judgment alone does not establish the violation. The
secretary’s position is that a competent person would have insulated the wires over this
portion of the acccsswaym Since the wires were not insulated, the Secretary asserts the
inspections were not performed by a competent person. The backgrounds of persons
inspecting its worksite was sufkient to qualifv as ucompetent.~ The violation is vacated.
 ALLEGEDWILLFUL CIT’ATIONNO. 2

   On two separate oaMons        Dcfelicc equipment came into contact with overhead

electric& lines. The Secretary asserts that either ur both of the occurrences were willful
violations of 0 1926SSO(a)(lS)(i). D&lice admits that the equipment contacted the
electrical lines but denies that this constituted a violation or that the violation should be
characterized aswillfi& It asserts as a defense that the events were unforeseeable and that
Defekc was without lrnowledge of the hazard. It fwther posits that, in any event, the cited
conditions are governed by Subpart (iii) rather than the cited Subpart (i).

                            APPLICABLE STWDARD


   The standanis at issue provide:

   (a)(lS) Except where electrical distribution and transmission lines have been
   decnergizd and visibly grounded . ..orwhere insulating b&ers..&vc been
   erected., quipment or machines shaU be optmta! proximate to power lines
   only in accordance with the following: (i) For lines rated 50 kV. or bckw,
   minimum clearance between the lines and any part of the crane or foad shall
   bc1Ofbetm

   (iii) In transit with no load and boom lowered, the equipment clearance shall
   beaminimumof4f~tforvoltageslessthan50kV....
   (Emphasis added)

   Admitting that its quipment regularly traveled under the electrical wires, Defelice

denies that it “operated” under the wires at the times of the accidents. Defelice argues that
since the equipment was “in transit* at those times, only 5 1926.5SO(a)(lS)(iii)could apply
and that the incorrectly cited standard must be vacated. The argument is rejected for
reasons d&ussed below.
Defelice mistakenly assumes that Subpart (15)(i) applies only when the crane is set
up to perform an uoperation.” Proper construction of this standard was discwed in Ho B.

                                         6

Z&uy Co. v. OSHRC, 638 F&l 812 (5th cir. 1981). In ZWuy, the crane was to -1
several hundred feet with its boom lowtrcd canyiag a logd of pipe. Zachry claimed at
these cirm were not governed by any standard sine the term "operating"h
Sub* (m did not apply whenever a crane ‘Yrwckd.” Rejected as too I a
reading of the standa& the Review Commission found the term “operation of equipment
or machines”may cover cranes in transit. ti appeal the FUst circuit agreed and further

        It is more logicaland in keeping with the standard’s terms and its purpose to
        find (15)Qii)as an exception-~~ when a crane is in transit without a bad-
                                            n )concerningminimumclearances between
        to the general rules of (15)(i) 8t (O’
        cranes and hctrkal transmission lines whether or not the crane is loaded or
        in tmsit. It is doubtful that (15)(iiii would have been needed if (i) & (ii)
       were intended only to regulate cranes operating in a stationary position        l   m.0




       638 F.2d at 818

The Zrrchtyanalysisdoes not mean that Subpart (15)(iiii is an uexception” in a traditional

. sense which shifts the burden of proof. See eg, Fhnqan consftuctibn Co., 6 BNA OSEIC
1496, 1497,1978 CCH OSHD 122,675, p. 27,371 (Na 14536,1!P78). It dw indicate that
the terms of lS(iii) must be strictly applicable if lS(iii) is to override the 10-f- clearance
requirement of 15(i). As noted in E&y, and as demonstrated and achowiedged in this
case, electrical lines present sign&ant potential hazards on construction jobsites.
Considering the factual circumstances here, the incidents were properly cited by the
Secretary under Subpart 15(i). The occurrences did not fit within each of the terms of
lS(iii), Le., the quipment was not (1) in transit, (2) with no load, and (3) with the boom
lowered. Thus, the standard permits a lesser clearance when brief exposure under power
lines is anticipated and quipment is fiiily in a transportation mode.
Contrary to respondent’s argument, equipment may travel at a worksite without being
considered “in transit”for purposes of lS(iii). The standard does not contemplate that “in
transit” is to be so broadlydefined that it encompasses every occasion that equipment moves
at a construction site.

                                               7

The areawhere both accidentsoccumd was a dirt acctsswaywhicbindined upward
at the pointwhere elect&al lines crossedit. Tbc a- yhadbecnapartofthehighway
before Defeb removed concrete in order to fkilitate the planned repavement of he road
at a later date (Tr. 36). The accident area was a put of tbt OvcraJlCOIWtrUCtioII
site.

   On August 4,1992, the backhoe was not “in transit” as defined by Subpart lS(iQ.

The specific work area was appraximately 75 fett beyond the overhead lines at the
accessway (Exh. R4, Tr. 306307). The activity required by the Kobeko 916 backhoe
operator on August 4, 1992,was not merely to mwc the quipment from one point to
another, although that was his ultimate object&e. The backhoe operator was expected to
maneuver over or around or to muve a 4-f6otdirt pile on the accesswq under the lines (Tr.
307409). As foreman Gregory Nunes explained:
A As [Lfayd)proceeded up the ramp, going westbound, he had
cleared the lines. We had him on the flat. I had him turned
around. I stopped the operator, got out of the machine, and WG
walked up and I explained to him exactly what needed to be
done . .
l l

   Q0      In youropinion, could he have done that? Could he have gone
           around [the dffmt dirt pile]?

   A      Yes, he could have, but he would have had to actually, I
          believe, drag some material out of his way to make it a little
          better.

   (Tr. 306-308)

   Since Westfiillwas required to maneuver the equipment and remove dirt from the

dirt pile, the backhoe was not strictly “in transit,”and Subpart 15(iii) does not apply.
The standard likewisecannot apply to conditions existing on August 22,1992 The
crane was to be driven approximately 100 to 150 feet from the area where the overhead
wirescrossedthea ccessway.The operator of the P&H crane proceeded up the incline of
the accesswaywith the boom raised 3 feet (Tr. 320,324). Since the boom was not in the
lowest transportation mode, as required by lS(iii), that subpart does not apply.
 Moreover, the operations superintendent knew that equipment such as the P&H
crane regularly kaneuvered under the wires. As he descrii itz
But, Bill cafdwen, he cou)d go up the ramp, swing his boom sideways and
clear the thing at 11 fact.It’s operator-I’m not knockingIuoyd], but he was
not famrliat with the machine. Billranthisthingeveryday.He could run up
tothet~ofthehill,andwhenhegcMothelines,swinghisboom,andget
right up underneath it, and he cleared this thing by 11 feet. vr. 357).

       The cited standard at Subpart 15(i) is applicable to both incidents at issue.




       From the beginning,,the accessway was a potential probkm for Defelice where it

. crossed under electrical wires. The bottom conductor maured 22 feet above the grou@
the second and third lines measured 23 feet abuve the ground (Tr. 154-155). ‘IMe
measurements were taken a&r the 4-f-t mound had &en removed vr. 173).
The Kobelco backhoe invoed in the August 4 in&jent measured 11 feet 4 inches
in height as it satin its travel mode. Similarly,
the P&H crane involved in the accident of
August 22 measured 11 f&et7 inches in height when the boom was completelyfolded (B&s.
R-5, R-7; Tr. 239,241). At best, only a lO-foot &inch to lO-oat l-inch clearance existed
when the equipment crossed under the lines. Measured from the 4-Oat mound existing
before the August 4 accident, the ground-to-wire distance was 6 fett 8 inches. Defelice
considered that it must maintain a 4-ffmtclearance whenever quipment was in transit under
the lines. Since it did not anticipate that equipment would “,perate” u&r the wires once
the pavement had been removed, it viewed all other movement of the equipment as being
Yn transit?

                                      DISCUSSION


      To estsblish a violation of a specific standard, the Secretary must prove by a
preponderance of the evidence that the standard applies, that the terms of the standard
were not met, that employees had access to the condition, and that the employer either

                                            9

knew of the conditionor could have known with the exercise of reasonabk diligence. &,
ASP -W-B, 9 BNA OSHC 2126,2129,1981 CCH 06HD 125,578, pp.
31,=%X) (Na 786247, Ml), cffd timparr, 681 F.2d 69 (1st Cir. 1982).
On August4,1992, the boom of the backhoe struck electrical lines when it angled
upward as it QoQsedthe 4-Oat dirt mound along the accessway(Tr. 28%290).The backhoe
operator, Eugene We&II, was moving the backhoe to begin excavation work at a piling
midwaybetween the accident location and the bridge @XL Gl, p& 11; R-4). Defelice
denies that it had knowledge of the violation. However, its operational foreman, Gregory
Nunes, directed Westfall in the operation. Nunes spe&i&ly stopped WestfW at the portion
of the accesswaywhich resulted in the accident. Nunes “went over with [westfanl about the
wires. I said I didn’t want to take any chances whatsoever” fir. 308). A superior%
knowledgeand actions normallyare imputed to their employers. DavaElcvotor Ca, 15 BNA
OSHC - 1991CCH OSHD f 29,524, po39,849(No. 8&2642,1991);R& M Wii &w&
15 BNA OSHC.1809at 1814,1992 CCH OSHD 128,876 at p. 40,584 (No.87-@2,1992).
Nunes’knowledgeof the violation is imputed to Defelice.
Eighteen days later the August 22, 1992, incident cxcwrcd at roughly tbc m
location as the first accident. August 22 was a Saturday, and a skektcm crew was setting up
newlydelivered equipment. Present were an operations superintendent, Francis Naw,
a carpenter “foreman,” John Evans; a master mechanic, Jack Schaifec and other
employees, including Maurice Uoyd, a mechanic-greaser(Tr. 313,353). When parts for the
new machine were not delivered, Nations left to call the supplier. While he was gone, Evans
informed Schaffer that We have to bring [the crane] up” to allow the men to work on the .
new machine (T’r.341). Schtier and Evans went to the crane but were having dMcuhy
raising its outriggers. Iloyd observed the problem raising the outriggersand offered to help
(Tr. 336).
Maurice Lloyd worked under SchafZer(Tr. 334). Lloyd was qualified by his union to
operate various types of equipment, including the P&H crane, which Schtier directed him
to operate that day. Lloyd had previously operated this and other heavy machinery, usuaIly
in conjunction with his work in maintenance (Tr. 313,327). When Lloyd was successful in

                                          10

raisingtheoutriggers,.CehaffcrtoldU9dtotaketbecrane”upontop~tbehilftothearea
where they mntcd it” vr. 317). The accesswaY~~~=uogdproceededupthe
idine. Attemptingto determinehow much room remainedon the sides,he r&~& &
boom 3 fett and into the electrical wires (Tr. 324). ‘Ike were no iq@ries,but West Pem
power was rquired to repair the Iines and invest@te this scaxwi incident (Tr. 2%).
Defelicc denies that it bad kncmkigc of empluyws’actions in bringingup the P&H
crane. If Evans and Schaffixwere sqewisozy employees, their kndedge of the viohion
is imputed to the company. Defelice distinguishes between management or “operational”
supe~rs (only Nations was “operational”) and Tmion* supervisors(such as Evans and
SchaiTer). Whether an employee is paid hourly and has authority to hire or fire are
relwant but are not dispositive of management status for purpws of the Act. %haffer
was, as Lloyd considered him to be, IAyd’s first-line supe&or, W~CBC
dircc&~ must be
complied with (Tr. 331,334). As with other supewisory sta& ScbafEkfhad his awn “officen
~&telephone and parts cabinet FL 352). Such “union” supewisors are compuabk ‘Icad
menn or working foremen (Tr. 351-355 359). In Defeke’s supenisory scihenq union
supewisors direct employees’actions and have responsiiiiiliti~ and authority sui%ient to
bind the company. This fact is illustrated by Nation’s reaction to tiding the crane “up the
hill” when he returned dram making his phone caIL Nations was not surprised to see the
crane there, and uI didn’t say anything because I would have probably gfiven] the order
sooner or later to get the crane up there myse& but it ~8s up there” vr. 354). The
supervisors’lcnowledge of the August 22 violation is imputed to Defelice.

              DEF’ELICE’SEMPIBYEE MISCONDUCI‘DEFENSE


     Defelice sought to establish its defense of “unpreventable employee misconduct.”

The defense recogkes that an employer is not held liable for idiosyncratic conduct of an
employee in canying out orders which violate a company’s saftty policy. However, the
burden of compliance remains with the emplayer who must afhnnatively show that: (I) it
established work rules designed to prevent the violative conditions from occurring; (2) the
work rules were adequately communicated to its employees; and (3)it took steps to mr

                                        11

violations of tkxe r&s and eff&ctivelyetiorad the rules when violations were w
EG., HruniEEar
Fiiii, 16 BNA OSHCZ
1073,1993 CCH OSHD 1- (No. 88172Q 1993);
GoryconarttM, Ii., 15 BNA OSHCat 1055,199l CCH OSHD ‘I - at p. 39,452(Na
8tHo87,l~l~
The only safety rule which arguably pertains is found in one paragraph of the

   Highvoltage ekctrk equipment and transmissionlines are tobe appmadmd
   andhandlodonlybypenonsqalifiedandauthorizedtodosoandontyafta
   complete precautionshave been taken for the safety of them&Es and others
   m    cl, p& 11)

It is not sufkient to establish the defense for W&y rules in genarJ to have been
communicatedand enforced. The &ety rule must be specificenough to advise em@yees
what they must do to avoid the hazard. Set Hamih Fm sup. Defeke’s MU&mle
was so general that it is questionable whether it even applied to the hazard. ‘Ike wasno
enforcement of even the general work rule. Defelia’s superintendent, Au@ m ~MW
that he was ‘tery disappointed”in the men and that “if it ever happened again, @e wouldI
fire the entire bunch” (Tr. 372). This fti far short of the type of effkctive cnfkccment
required by the &fensc. Signs provided by the utility, even assuming argue&o thegmre
posted, is not a substitute for eIlfoorcementof the company%own work rule. Employees
must be @en specificinstructions and training on identifiable hazards, not merely bkmed
if accidents occur. The defense has not been met.

  Was the violation of 0 1926SO(a)(lS)(i) willful?                   .
  A willfdviolation is one committed with intentional, knowing or voluntary
  disregard for the rquirements of the A& or with plain indiBIerencc to
  empluyw safety. EG, Willirunss                Ik, 13 BNA OSHC 1249,

. 12%57,19&87 CCH OSHD 127,893, p. 36,589(No. 85-355,14&7). It is
dBerentiated from other types of violationsby a “heightened awareness4
the illegalityof the conduct or conditions-and by a state of mind+onscious
disregard or plain indifference.”Id

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Afindiagofwillfulnesripnotjustifiedifaaemp~rhas~agood~~
effortto comply~6tha stahdard,even thoughthe employ&s efforts are not
entirely effbctk 0~ compkte. Ii AISQ a violation is not wiilful if the
employer had a good faith opinion that the violative conditionsconformedto
the requirements of the &tedstandard. Hmmer, the test of goodfaithfbr
these plffpoges is an objectiveone-whether the employer’sbelief amcerning
. a factual matter, ‘or concerning the interpretation of a standard, was
reasonzibleunder the circumstances. Id 13 BNA OSHC at 12!59,1986-87
(x3H OSHD at p. 36J91.

cizhng Corp., 14 BNA OSHC 1789,1791,1990 m            OSHD 1 B,531 (Na 8%319,199O).
       Asserting that Defelice had a heightened sense of the ille@ty of its conduct, the
Secretaq notes that in May 1992,West Penn Puwer fknished Defeke a series of warning
signs relating to overhead and underground elcctrkal wires (MIL C-lo), and that its
employee manual contained the previously quoted section vr. 41).
       Defeliceinterpreted ~l926SO(a)(1S)(iiii~as jwmitting it to maintaina clearance of
4 feet under the wires on the acassway when the equipment was “in transik” At the
beginningof its job, Defelia ascsscd the need for ektrical protection fa the jobdte,
includinguse of insulated covers for the ektrical lines. Whik se&&g the insulated covers
for other areas of the jobsite, it determined that it would not need the insulation at the
location involved in the accidents since it intended to maintain a 4-fat clearance. In
response to the August 4 incident, Defelice removed the 4-f-         dirt momd which it
considered to be the cause of the accident. Defelice should have secured insulated line
covets for the electrical conductors under which its equipment could move. However, its
understanding of the requirements of lS(iii), though too broad, does not establish a
“heightened awareness” necessary to prove a wiIlM violation of the Act. Although not
wWul, the violation is serious. An accident could endanger not only those touching the
outside of the machinerywhich contacted electrical lines but, because of ground gradiencc,
those merely approaching it (Tr. 208). Death or serious injury is the expected resuk
Considering the statutory factors and the high gravity of the violation, a penalty of $4,000




                                            13

ALLEGEDwmER~ TBAN SERIOUSCITXITON NO. 3

                             Item 1,0 d 1926.5a


   The Secretaryobserved two cracks in the windshieldof the P&H crane whift it ww

operating on August 24,199Z One crack ran vertically up the side of the windshW, and
the other ran horizoMaIiyacross it (Exh. C-15).
Thestawudprcwicks:

   (12) AUwinduwsin cabs shall be of safetygIass,or quivalent, that introduces
   no vi&le distortion that will interfere with the safe operation of the machine.

   Delsignore stated that he did not observe the scene from inside the crane cab sina

he did not wish to bring the operator down from the equipment (‘I’r.71). The simpk
existence of a crack does not per se constitute a violation. copied lIuwel@ Ca, 15 BNA
OSHC 1304,199l CCH OSHD 129,894 (No. 89-21248,199l). Neither photographs mr
testimony establishedthat the cracks in the P&H windshieldcreated a distortedview for the
operator. Delsignore speculated that cracks “could pre8ent distortjonsmand bad the
upotential” to distort vr. 71,128 ). Lloyd, who operated the crane on August 41992, did
not find that the cracks in the windshield distorted his view fir. 326). The Secretary has
not established a violation, and it is vacated.

                            F’INDINGSOF FACTAND
                            CONCLUSIONSOF LAW


   The foregoing decision constitutes the tidings of fact and conclusions of law in

accordance with Federal Rule of CM Procedure 52(a).

                                      ORDER


   Based on the foregoing decision, it is ORDERED:
   (1) That the violation of 6 1926601(b)(4) is vacate



                                         14

(2) ‘Rut the violation of 0 lIMSqb)(l) is -cd as serious and a penalty of
$l,ooo is a==&
(3) That the violation of 9 lg3L20@0() is vacate
(4) That the violation of 8 l926.S5O(a)(lS)(i)is affimxd as serious and a penalty of
$4,000is m and
(5) Tbat the violation of 0 1926Sqa)(12) is vacated

                                    Is/ Nancv J. S&s
                              NANCYJ. SPIES
                              Judge

Date: February15, 1994

                                      15