North Landing Line Construction Co.

Plain-English summary

North Landing Line was modifying a switch carrying up to 34,500 volts at a Navy electrical substation. Its job superintendent and a backhoe operator held a steel bracket near energized parts, and the operator contacted an energized insulator, suffered electrical and thermal burns, and later died. The Commission found that the crew violated the 28-inch minimum clearance distance and that the company failed to exercise extraordinary caution. The switch could have been isolated in about 45 minutes, but the superintendent proceeded without de-energizing it, insulating the exposed parts, providing suitable protective equipment, or adequately training the crew. The employee-misconduct defense failed because the company lacked a protective clearance rule that applied to its own workers and did not show effective communication or enforcement. The Commission affirmed the violation as willful and assessed a $49,000 penalty; a separate qualified-person item remained vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.957(a)(3) and 1926.416(a)(4)
• Outcome: Willful energized-substation violation affirmed with a $49,000 penalty; separate qualified-person item remained vacated.
• Key point: Proceeding near high-voltage equipment with an untrained laborer, despite an available short de-energization procedure and without basic protective measures, supported willfulness.

Full text (OSHRC public release)

                                        :

SEC RET ARY OF L ABO R, :
:
Comp lainant, :
:
v. : OSHRC D ocket No. 96-721
:
NORTH LANDING LINE :
CON STR UCT ION C O., :
:
Respon dent. :

                                     DECISION

Before: RO GERS , Chairman; and E ISENBR EY, Com missioner.
BY THE COMMISSION:
North Landing Line Construction Co. (“NLL”) does commercial and industrial
electrical contracting work. NLL had almost completed its contract to replace and upgrade
fourteen switches at an electrical substation at the United States Naval Air Station in Norfolk,
Virginia, when it as signed a cre w to mo dify the 09 sw itch, which carried up to 34,500 v olts
of electricity from phase to phase. While on a ladder assisting in this work on the energized
side of the switch, an employee of NLL suffered electrical and thermal burns and later died.
After its investigation, the Occupational Safety and Health Administration (“OSHA”)
issued a citation alleging a willful violation of a standard requiring that employees maintain
a minimum distance from energized parts and that they exercise “extraordinary caution”
when in that vicinity. Administrative Law Judge Covette Rooney affirmed the citation item,
finding that NLL failed to comply with the minimum distance requirement regarding two
employees, and that it failed to exercise th e requisite ex traordinary cau tion. She
characterized the violation as willful, as alleged. For the following reasons, we agree that
NLL v iolated the cited standard an d the violation was willf ul.
Background
The NLL crew assigned to modify the 09 switch consisted of: Darrell Northrup, job
superintendent and master electrician; Ronald Marks, a fourth-year electrical apprentice;
 2

Brad Seiberlich, a first-year electrical apprentice; and Tommy Light, a backhoe
operator/laborer. Their assignment was to bolt the “top,” or closed, end of a 30-inch long
steel bracket in an inverted “U” shape to the underside of a metal plate attached below the
switch’s cross bar, which was about ten feet off the ground on top of the support column.
On the cross bar, the three phases, “A,” “B,” and “C,” of the 09 switch were spaced 36 inches
apart.
According to Northrup, after the crew arrived for work at 7:00 a.m., he sent Light and
Marks to pick up the steel bracket at N LL’s office in Chesapeake, Virginia. While they were
gone, N orthrup an d Seiberlich entered the substation. N orthrup clim bed up a tw elve-foot-
high fiberglass ladder that he had set up at the 09 sw itch, with Seiberlich at the bottom of the
ladder. Northrup took m easurements from below the cross arm to determine whe re to drill
the holes in the bracket. Northrup testified that, while on the ladder, he “removed the
existing bolts that were in the switch and installed the longer o nes” that w ould be us ed to
install the brack et.
Then, the steel bracket arrived at the site, and the crew took it inside the “control
house” structure and drilled holes in it for the bolts to go through. While the drilling was
being complete d, Northru p went o utside to look at the work area. Light, the backhoe
operator/laborer, came o ut and a sked N orthrup what th ey were d oing. According to
Northrup, he told Light that they were going to mount the steel bracket under the cross arm
and also told him, “The thing is hot, do not get up.” Light then left, and Northrup positioned
an 8-foot w ooden ste p ladder directly und erneath where the brac ket wa s to be p laced, a
location very near and to the side of the 1 2-foo t fiberg lass ladd er. After returning with the
bracket, Light hande d one e nd to N orthrup and too k the oth er hims elf. As Light climbed the
fiberglass ladder, which was nearest to him, Northrup climbed the wooden step ladder. Light
had on cotton gloves and was not wearing a hard hat or other protecti ve cloth ing. Northrup
was w earing a hard ha t.
Holding the bracket above their heads, with about twelve inches between them,
Northrup and Light lined up the holes in th e bracket w ith the bolts sticking down through the
metal plate. North rup testified th at, while Light was still holding the bracket above his head,
 3

Northrup rested his end of it on the top o f his head and used his fingers to place and tighten
a lug nut and washer o n the bolts near him. A ccording to Northru p, because the bolts w ere
not tight enoug h, he asked Seiberlich to get a socket, ratchet, and extension that could f it into
the six-inch opening under the bracket. Northrup testified that as he was stepping down off
the wooden step ladder, he heard an arcing sound. He closed his eyes and jumped off the
ladder, and he saw Light on fire on the ground.
In their testimony, the other crew mem bers, electrical apprentices Marks and
Seiberlich, corroborated Northrup’s sequence of events leading up to the accident. Marks
testified that, when the accident occurred, he was holding Light’s ladder and looking up at
Light and “saw a bright flash of light, fire, it was so bright I had to turn away.” Marks stated
that when h e did finally look up again, he saw Light falling off the ladder with his clothing
on fire. Seiberlich testified that he was at the truck looking for the socket when he “heard
a big arc, big bang,” and he saw Light fa lling off the ladder.
On the morning of the accident, the 09 switch was “open,” meaning that the energized
switch blades on the “line” or “live” side were elevated and not connecting with or
transmitting power to the unenergized “load” or “dead” side. The line side where laborer
Light was located on the twelve-foot fiberglass ladder was “live” or “hot” because it was
energized up to the top of the B phase insulator’s ten porcelain rings and the switch blades.
By contrast, the circuit above the cross-bar on the side where Northrup was positioned on the
eight-foot wooden step ladder was “dead,” because the load side cables and terminations
were n ot energ ized.
Based on these facts, the Secretary alleged that NLL v iolated 29 C.F.R.
§ 1926.957(a)(3), which provides:
§ 1926.957 Construction in energized substations.
(a) Work near energized equipment facilities.
....

    (3) Extraordinary caution sha ll be exercise d in the handling of busbars, tower
   steel, materia ls, and e quipm ent in the vicinity of energiz ed fac ilities. The
   requireme nts set forth in § 1926.950(c) [minimum working distances for
   different voltage ranges], shall be complied with.

4

It is undisputed that the voltage at the 09 switch was 34,500 volts, or 34.5 kilovolts,
alternating current, phase to phase. Based on the incorporation by reference of 29 C.F.R.
§ 1926.95 0(c) and its Table V-1 into the cited standard, the minimum working distance from
energiz ed parts at that vo ltage is “ 2 ft. 4 in.” or 28 in ches.
Elemen ts of Violation and Bu rden of Pr oof
To establish a violation of the standard, the Secretary must show by a preponderance
of the evidence that (1) the standard applies, (2) the employer violated the terms of the
standard, (3) its employees had access to the violative condition, and (4) the employer had
actual or constructive knowledge of the v iolative c onditio n. E.g., Gary Concrete Products,
Inc., 15 BNA OSHC 1051, 1052, 1991-93 CCH OSHD ¶ 29,344, p. 39,449 (No. 86-1087,
1991). It is undisputed that section 1926 .957(a)(3) applies in this ca se. See gene rally 29
C.F.R. § 1926.950(a). The other three elements of the Secretary’s case, however, are to some
degree at issue.
I. Did the Secretary Prove that NLL Violated the Terms of the Cited Standard?
In addition to requiring that employers maintain a minimum clearance distance of 28
inches from a part energized at this voltage, the standard separately requires that employers
exercise “extraordinary caution” in the handling of materials and equip ment “in th e vicinity
of energized facilities.” For the following reasons, we conclude that the Secretary proved
by a preponderance of the evidence that both provisions of the standard were violated.
A. Was Supervisory Employee Northrup C loser than 28 Inches to Energized Parts?
Northrup testified that, after the accident, he measured the distance between the top
of the bracket, then positioned under the metal plate, and the closest energized part, on the
B phase insulator, as “like twenty-eight” inches. His measurement is consistent with the
measurement of 28 inches taken by the Navy’s J. Thomas Eason, who investigated the
accident for the Re sident Officer in Charge of Construction (“ROICC”) of the Naval
Facilities Engineering C ommand (“N FEC”). While other evidence indicates less distance,
we will use Northrup’s measurement because it gives the emplo yer the benef it of any doub t.
Because the top of the metal plate was higher than the top of the bracket, the heads
of the bolts resting above the metal plate were closer than 28 inches from the nearest
 5

energized part. Helmut Brosz, the Secretary’s expert witness, testified that an employee
removing the old bolts o r inserting the lo nger bolts w ould com e up to 5-1/2 inche s closer to
the nearest energized part. NLL did not rebut this testimony. Webster Chandler, NLL ’s
expert witness, acknowledged at the hearing that the bolts would have to be put in from the
top dow n, thus re quiring one ha nd to be above the brac ket.
We find, as the judge did, that this evidence establishes that Northrup came closer
than 28 inches to the nearest energized part before the steel bracket was first brought to the
site that mornin g from N LL’s off ice by Light an d Mark s, and that N LL viola ted the terms
of the cited standa rd. See, e.g., Access Equipment Systems, Inc., 18 BNA OSHC 1718, 1722
n. 8, 1999 CCH OSHD ¶ 31,821, p.46,778 n.8 (No. 95-1449, 1999) (violation of standard not
dependent on a ccident). 1
B. Was Backhoe Ope rator/Laborer Light Closer than 28 Inches to Energized Parts?
Crew Members’ Testimony. Job superintendent Northrup and electrical apprentices
Marks and Seib erlic h testified at th e hea ring that t hey never saw backhoe operator/laborer
Light go abov e the brack et or cross arm , which w ould have brought L ight closer than 28
inches from the nearest energized part, according to Northrup’s measurement discussed
above. Northrup also testified that Light never tightened the bolts, and he never saw Light
use the crescent wrench. Marks, who was holding the fiberglass ladder for Light, was the
only crew member who testified that he actually observed Light, from his position below
him, at the tim e of the acc ident.

    The judge rejected the testimony of the crew membe rs on this poin t. She foun d their

testimony not credible based on her observation of their demeanor at the hearing. The judge
also found that the three cre w members’ testimony was inconsistent with their prior
statements given to government investigators. J. Thomas Eason, who, as noted above,

1
Because we find noncompliance with the terms of the standard based on Northrup coming
closer than 28 inches to the energized part and, in addition, on other evidence discussed
below, we need not address the judge’s findings regarding the presence of materials on the
face plate. See, e.g ., Access Equipment, 18 BNA OSHC at 1720 n.4, 1999 CCH OS HD at
p. 46,775 n.4.
 6

worked for the N avy’s ROIC C, NFE C, condu cted interview s within about thirty minutes of
the accide nt. Eason testified that the surviving crew members told him that Light was bolting
the bracket just prior to the accident. We note that, as discussed above, bolting would require
having at least one hand above the bracket, which is contrary to the crew members’ testimony
that they never saw Light go above the bracket. The judge also mentioned that the interview
notes of OSHA Compliance Officer Thomas Edwards, which were introduced into evidence
by NLL, stated that Marks told Edwards two days after the accident and again abo ut a month
later that Light and Northrup were both doing bolting, and that Marks had seen Light trying
to use the crescent wrench to tighten th e bolts before setting it down on the main switch
suppo rt.
The Comm ission gives g reat deferen ce to the jud ge’s credib ility findings, for it is the
judge who has lived with the case, heard the witnes ses, and observ ed their d emean or. E.g.,
C. Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ¶ 22,481, p. 27,099 (No.
14249, 1978). H ere, the judge noted the demeanor of these witnesses while they testified
before her, and she gave a number of reasons, supported in the record, for her determination
that Northrup, Marks, and Seiberlich were not credible. NLL has not shown a valid reason
why we shou ld overturn the judge’s cred ibility findings, and our review of the rec ord has not
revealed any adequate reason for doing so. We therefore accept the judge’s credibility
findings. See Hamilton Fixture, 16 BNA OSHC 1073, 1085, 1993-95 CCH OSHD ¶ 30,034,
pp. 41,180 -81 (N o. 88-1 720, 19 93), aff’d without published opinion, 28 F.3d 1213 (6th C ir.
1994) .
In response to NL L’s argumen t that the crew membe rs’ statemen ts in the CO’s notes
were hearsay, we note, as the judge did at the hearing, that the crew members’ prior
inconsistent statements were admissions of employees concerning a matter within the scope
and time of their employment and are therefore not hearsay under Rule 801(d)(2)(D) of the
Federal Rules o f Evid ence. See, e.g., Regina Constr. Co., 15 BNA OSH C 1044, 1047, 1991-
93 CCH OSHD ¶ 29,354 CCH OSHD p. 39,467 (No. 87-1309, 1991). Moreover, while a
compliance officer’s notes might have in herently less probative value than an employee’s
own credible testim ony, the emp loyees’ testimony here was explicitly discredited, and the
 7

compliance officer’s n otes w ere intro duced into evid ence b y NLL itself. See id. at 1049,
1991- 93 CC H OS HD a t p. 39,46 8.
Expert Testimony. Each party called an expert witness on the issue of whether Light
came closer than 28 inches from the nearest energized part. The Secretary’s expert was
Helmut Brosz, who is a registered forensic engineer and Director of the Institute of Forensic
Elec tropatho logy. 2 Electropath ology is the stud y of death in human and animal tissue from
the effects of electricity. Hired b y the Navy to inv estigate the accident, Brosz reconstructed
the incident at the site less than a month af ter it happen ed, with N LL’s exp ert present. Brosz
testified that the equipment at the scene exhibited the indelible marks that result from contact
with an electrical arc. He opined that the imprint from a cotton glo ve on the f ourth porc elain
ring up from the bottom of the B phase insulator indicates that Light contacted th at ring with
the wrist of his right hand, while the impression of Light’s thumb and forefinger on the cross
bar surrounded by burn marks show that Light was holding the cross bar with his gloved left
hand. As shown in a photographic exhibit, in an effort to re-create Lig ht’s position at the
time of the accident, an associate of Brosz climbed the line-side ladder and positioned
himself as Brosz described.3
According to Brosz, the electrical current ran from Light’s wrist through his right arm,
across his chest to his left arm, then to his left hand on the cross bar, and finally to ground
through the grounded mast, or support column. Brosz explained how this is consisten t with
the entries in Light’s medical report that he suffered electrical burns, which led to tissue
necrosis and ultimately kidney failure. Brosz explained that Light suffered thermal burns
when he caused an arc blast by touchin g this B phase insulator. Th is created a b all of hot,

2
This Institute, which has a wo rking relation ship with the University of Toronto, Canada, has
a very large data base on electrical accidents worldwide, including slides, videotapes,
photographs, case studies, and printed materials.
3
NLL’s expert, Webster Ch andler, testified that he took this position and found it very
awkward. We note, however, that a comparison of the photographic exhibits showing
different aspects of his position, w ith the photographic exhibit of Brosz’s associate during
his reconstruction , suggests tha t Chandle r did not assu me the sam e position in e xactly the
same lo cation.
 8

expanding, conductive gas about four feet wide that engulfed the A and B phases, spaced 36
inches apart on this v ertical break th ree pole sw itch, and cau sed severa l faults befo re it
becam e nonc onduc tive with in a frac tion of a second .
We find that the Secretary has made a prima facie showing that Light actually
contacted the insulator based on Brosz’s testimony, which is consistent with the physical
evidence. See, e.g., Okland Construction Co., 3 BNA OSHC 202 3, 2024 , 1975-76 CCH
OSHD ¶ 20,441, p. 24,406 (No. 3395, 1976) (reasonable inferences can be drawn from
circum stantial e videnc e).
To rebut th is show ing, NL L relies o n its exp ert, We bster C handle r, a certified
professional electrical engineer, who has been a consultant for many years designing
electrical systems and investigating over a hundred electrical accidents. Chandler testified
that Brosz’s theory is not consistent with the med ical report, which refers to an en try wound
on the left han d, but do es not re fer to an exit wo und. C handle r also op ined tha t, if the
accide nt had h appen ed as B rosz de scribed it, Light w ould ha ve bee n killed i nstantly.
Brosz responded in his rebuttal testimony that, while the injury on the left hand was
much more pronounced and would therefore immediately catch the eye of an emergency
practitioner, the right hand received a different type of electrical burn, consisting of less
visible, small pin holes.4 Brosz also explained that such high voltage as Light encountered
does not kill as fast a s lower vo ltage, which puts the heart of the person co ntacting it into
fibrillation. He stated that high voltage seizes the chest muscles and prevents the heart from
fibrillating.

   Chandler’s testimony also included his own theory of what occurred. He assumed

Light’s legs to have been at the eye level of Marks and Seiberlich, based on their testim ony,
which the judge discredited. Chandler therefore assumed that no part of Light rose above
the bracket. Chandler accounted for the thermal burns that Light suffered as being the result

4
Brosz added that, with alternating current, as in th is case, there really is no such thing as an
“ent ry” and “exit” wound anyway, because the current enters one moment and exits in the
next six tieth of a second , and the n enters again th rough what it h as just ex ited.
 9

of an arc-ove r, or short circu it, that involved all three phase s and cou ld have been caused by
switching surges, which occur when circuit breakers are operated in certain sequences on a
power distribution system. He acknowledged, however, that they are “clearly abnormal
conditio ns.” According to C handler, the arc-over between the phases created a fireball that
engulfed Light and caused thermal burns. Ch andler also g ave gene ral testimony that, in
addition , electric c urrent f lowed throug h Ligh t and ca used el ectrical b urns.
Disputing Chandler’s arc-over theory, Brosz explained that it would have been
“absolutely impossible ” for the ac cident to have happened as Chand ler described ; it would
have required much higher voltages for such an arc to ha ve been draw n through the air. If
a switching surge occ urred, the ov ervoltage w ould be no more than two times the rating, and
the surge would have to travel thousands of feet through underground cable and all manner
of equipme nt to manifest itself where Light was located, and “it just doesn’t happen.” Brosz
also testified that for Light to have had current flowing through him under Cha ndle r’s th eory,
Light would have had to have been “within inches of” the insulator at the time of the arc-
over, yet Chandler assumed that Light’s head was below the bracket and thus more than two
feet away. Accord ing to Bro sz, the only poss ible way that Ch andler’s ph ase-to-pha se fault
theory could have happened is if the switch had been directly hit by lightning, an event that
is not alleged to have occurred here.
We find, moreover, no m erit in Chandler’s claim that Bro sz’s analysis is flawed
because of his failure to mention the Supervisory Control and Data Acquisitions (“SCADA”)
Report or test the switch to prov e that it w as not d efectiv e. At the hearing, Brosz explained
that the SCADA Report would not always show whether the fault was a result of a surge
phase-to-phase or phase-to-ground, because in a case like this, there would not have been
enough ground current going through Light to have tripped a circuit break er or any re lay.
NLL did not rebut th is expla nation. Although B rosz’s “Preliminary Report” mentioned that
it would be premature to draw a conclusion as to the cause of the accident until the switch
had been tested, Brosz testified that he was satisfied with his opinion as to what occurred.
He believed that the Navy initially had wanted him to test the switch, but the Navy sought
no further testing after he submitted the “ Preliminary Report.” Mo reover, the record
 10

establishes that NLL had the switch in its possession before the hearing and could have tested
it and int roduce d the res ults at the hearing . It offer ed no s uch pro of.
In our view, based on the expert t estimony noted above, Brosz’s theory that Light
contacted the in sulator is stron gly supported by the physical evidence and was not invalidated
by Chandler’s testim ony. Only Brosz’s theory provides an unrebutted explanation of how
both the thermal burns and the electrical burns occurred. Brosz systematically considered
the evidence at the site to dev elop his theo ry, and he used his expert k nowled ge in
electropathology to rebut Chandler’s testimony. Brosz also raised questions about
Chandler’s theory that were not explained by NLL. We agree with the judge that the
evidence adduced by NLL does not adequately rebut the Secretary’s showing. We find that
the Secretary has therefore proven by a preponderance of the evidence that the terms of the
cited standard were violated5 because Light actually contacted the energized insulator ring
and so came c loser tha n 28 inc hes fro m the e nergize d part.
C. Did NLL Exercise “Extraordinary Caution”?
In addition to finding a violation of the standard based on Light and Northrup
violating the 28-inch minimum safe distance, the judge also found noncompliance with the
second sentence of the standard: “Extraordinary caution shall be exercised in the handling
of . . . materials, and equipment in the vicinity of energized facilities.” The judge viewed
“extraordinary caution” in terms of the actions that the experts testified could have been

5
NLL contends that the judge erred in relying on the “speculative theory” of the
Governme nt’s expert as to the physical conditions on the day of the accident, because “‘[n ]o
part of the Sec retary’s burden can be left to speculation or conjecture,’” citing Ocean Electric
Corp. v. Secretary of Labor, 594 F.2d 396, 401 (4th Cir. 1979). The passage NLL quotes
from Ocean does not set forth a stricter standard of proof for the Secretary’s case than the
well-settled prepon deranc e of the eviden ce. See, e.g., Trinity Industries, Inc., 15 BNA OSHC
1788, 1789, 1991-93 CCH OSHD ¶ 29,773, p. 40,493-94 (No. 89-1791, 1992); Astra
Pharm aceuticals Prods., 9 BNA OSHC 2126, 2129, 1981 CCH OSH D ¶ 25,578, pp. 31,899-
900 (No. 7 8-624 7, 1981 ), aff’d in pertinent part, 681 F.2d 69 (1st C ir. 1982). The quotation
is actu ally a sentence from an unreviewed Commission judge’s decision in Shea-B all, a Joint
Venture, 10 OS AHR C Rep . 719, 72 3 (No . 5390, 1974) (ALJ), cited by the court in Ocean
Electric , only for the proposition that the Secretary has the burden of proof with respect to
knowledge of the viola tion and its fo reseeability. We have fou nd no lega l authority t hat
would preclude the Secretary from relying on expert opinion testimony to meet her burden
of proof.
 11

taken to protect em ployees from the electrical ha zard, in add ition to maintaining the
minimum clearance distance. We agree with the judge’s analysis.
It is clear from the record, as the judge found, and NLL does not really dispute, that
there were numerous methods of protection that NLL could have used to protect Light and
other employees. Both Government expert Brosz and NLL’s expert Chandler testified that
the accident could have been prevented by deenergizing the 09 switch. Brosz explained that
this would have meant deenergizing the line side, where Light was working, as well as the
load side, where Northrup was located.
The record shows that, although NLL c ould not on its ow n deenerg ize the switc h, it
could have easily arra nged for the line side to have been deenergized, like the load side, and
was even instructed to do this. Jeffrey Wray, of the Navy’s ROICC Office, to whom NLL
made deenergization requests over the course of the project, testified that about a week
before the acciden t, as Wray wa s on his way out the door, Northrup “said something about
working . . . the line side of the switch energized” for the bracket installation. Wray testified
that he turned and told Northrup “hell no” and advised him that the switch could be isolated,
and thus the line side deenergized, in 45 minutes. According to Wray, the clearance was
“just too close.” 6

6
The judge credited Wray’s testimo ny. She specif ically discredited N orthrup’s testim ony that
Wray had not instructed him to deenergize the whole switch. The judge referred to this as
“a similar finding” to her earlier determination that Northrup’s testimony as to Light’s
location “was n ot fully cre dible.” NLL takes exception to the judge ’s credibility
determination in favor of Wray, noting that Wray did not mention such instructions when
Navy personnel interviewe d him and others immediately after the accident. NLL argues that
Wray knew the change order work remained and testified that he planned to inspect the
afternoon of the accident. NLL also relies on the memorandum by the Navy’s Contracting
Officer Lcdr. W.M. Sheedy, wherein he states that he was “unaware of any direct discussions
regarding an outage for the work being accomplished at the time of the accident.”

We find insufficient reason to disturb the judge’s evaluation of the credibility of these
witnesses. She “has lived with th e case, hear d the witne sses, and ob served their deme anor.”
C. Kaufman, 6 BNA OSHC at 1297, 1977-78 CCH OSHD at p. 27,099. NLL’s objections
to the judge’s findings are unpers uasive . See, e.g., Hamilton Fixture, 16 BNA OSHC at 1085,
(contin ued...)
 12

   The judge also referred to other safety precautions discusse d by Brosz at the hearing,

which included using a bucket truck with an insulated boom, wrapping the phase insulators
in rubber blankets, requiring all crew members to wear rubber gloves, and training employees
in the hazards of high voltage, including identification of what is live and what is
deenergized, the minimum clearance distances, and appropriate personal protective measures,
such as wearing “Nomex” clothing, which does not burn like cotton.7 In our view,
implementation of some of these methods involves such basic safety considerations as to be
an exercise of mere ordinary caution. Nonetheless, despite the grave hazard to which these
employees were exposed, NLL took no safety pre caution s wha tsoeve r. Its noncompliance
with the standard’s requirement to use “extraordinary caution” is beyond question.
In summary, we conclude that the Secretary has established by a preponderance of the
evidence that NLL failed to meet the terms of the standard in the following three ways. Job
superintendent Northrup came closer than 28 inches from energized parts when he was taking
out the old bolts and installing the new, longer ones before the bracket even arrived at the
site. Backhoe operator/laborer Light contacted the energized insulator ring. NLL failed to
exercise “extraordinary caution” when it permitted the bracket installation to proceed in the
absenc e of line side de energiz ation w ithout th e use of any othe r protec tive me asures.

6
(...continued)
1993-95 CCH OSH D pp. 41,180-81. We first note that it was Northrup’s responsibility, not
Wray’s, to ensure the safety of the NLL crew. Wray testified that he was not familiar w ith
the work to be performed that particular day, for the last time he talked to Northrup was the
week befo re. W e fur ther note that S heed y’s memorandum does not directly conf lict with
Wray’s testimony. She edy qualifies th e statemen t by limiting it to his own awareness at the
time. He also refers to discussions regarding an “outage,” which is a different procedure than
the switch “isolatio n” that W ray menti oned to North rup. An “outage” requires fourteen days
advance notice to acc omplish an d would be neede d for wo rk directly on the switch itself.
For the bracket installation here, which involved no such work, “isolation” of both sides of
the switch was sufficient protection and could have been done in 45 minutes. Thus, we agree
with the judge and dismiss as not credible Northrup’s testimony that he had never been
instructe d to dee nergize the sw itch.
7
Brosz also testified th at “it would be prudent” for employees to keep at least 28 inches away
from any part of the insulator, even its lower rings, which were energized at a lower voltage.
 13

             II. Did the Secretary Prove Employee Access or Exposure?
   The Secretary can prove em ployee acces s or expos ure by show ing that employees

were in a zone of danger while in the course of their assigned working duties, personal
comfort activities on the job, or normal means of ingress and egress to their assigned work.
E.g., Capform, Inc., 16 BNA OSHC 2040, 2041, 1993-95 CCH OSH D ¶ 30,589, p. 42,356
(No. 91-1613, 1994). We conclude that, contrary to NL L’s arguments, the Se cretary
established employee access or exposure to the hazardous condition. By contacting the
energized insulator Lig ht was clea rly exposed to hazardou s high voltag e. Even b efore that,
Light’s work on the bracket placed him in the zon e of danger. The bracket installation work
was so close to the energized parts that minimal upward movement, inadvertent or otherwise,
would have placed some part of Light’s body closer than 28 inches from the energized parts.
In addition, superintendent N orthrup had access to the hazard when he came closer than 28
inches from e nergize d parts in taking o ut the old bolts an d placin g in the n ew on es. See, e.g .,
CMC Electric, Inc., 18 BNA OSHC 1737, 1741, 1999 CCH OSHD ¶ 31,817 (No. 96-169,
1999) , aff’d in relevant part, 221 F.3d 861 (6th C ir. 2000).
III. Did the Secretary Prove Employer Knowledge?
In order to establish a violation, the Secretary must prove that the cited employer had
actual or constructive knowledge of the violative conditions; in other words, she must show
that the employer knew, or with the exercise of reasonable diligence could have known, of
the cited condition. E.g., Pride Oil Well Service, 15 BNA OSHC 1809, 1814, 1991-93 CCH
OSHD ¶ 29,807, p . 40,583 (N o. 87-692 , 1992); A.P. O’H oro Co., 14 BNA OSHC 2004,
2007, 1991-93 CCH OSHD ¶ 29,223, p. 39,128 (No. 85-369, 1991). Under Commission
preced ent, a su perviso r’s kno wledg e can b e impu ted to his or her e mployer . Id.

        A. Did the Secretary Prove that Foreman Northrup Had Knowledge
                            of the Violative Condition?
   We conclude that the Secretary established that job superintendent Northrup had

actual knowledge of the violative conditions. Early on the morning of the accident,
Northrup’s own work, lifting out the old b olts and pu tting in the new ones, brou ght him
 14

closer than 28 inches from the energized part of the ins ulator, in violation of the terms of the
standard. Nor thrup also kn ew o f his own failu re to take extraord inary precautions when
performing that work, and knew tha t no such precautions w ere taken with respect to L ight’s
work either. Under C ommissio n precede nt, his actual kn owledg e would be imputa ble to
NLL.
The Secretary also showed that Northrup had constructive knowledge because he
could have known, with the exercise of reasonable diligence, that Light could have come
closer than 28 inches from th e energ ized eq uipme nt. Reasonable diligence involves several
factors, including a n employer’s “obligation to inspect the work area, to anticipate hazards
to which employees may be e xpose d, and to take m easure s to prev ent the o ccurren ce.” Frank
Swidzinski Co., 9 BNA OSHC 1230, 1233, 1981 CCH OSHD ¶ 25,129, p. 31,032 (No. 76-
4627, 1981). Other factors indicative of reasonable diligence include adequate supervision
of employees, a nd the form ulation and implementation of adequate training programs and
work rules to e nsure th at work is safe. See N & N Contractors, Inc., 18 BNA OSH C 2121,
2123, 2000 CCH OSH D ¶ 32,101, p. 48,239 (No. 96-60 6, 2000 ), aff’d, No. 00-1734 (4th Cir.
May 9, 2001, as am ended July 16, 2001).
Northrup knew that the switch was energized up to 34,500 volts, knew that Light was
a backhoe operator/laborer rather than a trained electrician, and even warned , “The thing is
hot, do not get up.” Nonetheless, Northrup permitted Light, just a short time later, to ascend
the ladder on the energized line side of the switch while holding a metal bracket. Northrup
himself was working from the other ladder on the unenergized load side no more than 30
inches away from Light. No rthrup had a duty to anticipa te that Light’s p roximity to high ly
energized parts while balancing on a step ladder and holding an end of the 30-inch steel
bracket above his head placed him in the zone of danger of the energized parts. As
mentioned earlier, the Secretary’s expert Brosz testified that “it would be prudent” for
employees to stay 28 inches away from any part of the insulator. The degree to which
Northrup fell short of reasonable diligence or prudence here is highlighted by his decision
to get off his la dder wh ile leaving a much less knowledgeable employee still on the other
ladder and in the zone of danger, when it would have been relatively easy to protect Light
 15

by one o f the m ethods discuss ed abo ve.
We therefore c onclude th at the Secre tary has established that a reasonably diligent
employer w hose em ployee was working in such clos e proximity to high-voltage energized
parts would h ave identifie d the haza rd and take n adequa te steps to add ress it. We find that,
in failing to take such action, Northrup failed to exercise reasonable diligence.
B. Did the Judge Properly Impute Superintendent Northrup’s Knowledge to NLL?
Under applicable F ourth Circu it preceden t,8 the Secretary has the burden of showing
that Superintendent Northrup’s conduct in violation of the standard was reaso nably
foreseeab le and prev entable in order to impute his knowledge of the violative conditions to
NLL. N & N Contractors, Inc. v. OSHRC, No. 00-1 734 (4th Cir. May 9, 2001, as amended
July 16, 2001); L.R. Willson and Sons, Inc. v. OSHRC, 134 F.3d 1235, 1240 (4th Cir. 1998 ),
cert. denied, 525 U.S . 962 (199 8); Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396
(4th Cir. 197 9). See L.R. Willson and Sons, Inc., 18 BN A OS HC 1 698, 16 99, 1999 CCH
OSHD ¶ 31,79 6, p. 46,6 21 (N o. 94-1 546, 19 99) (on reman d). See also Kerns Brothers Tree
Service, 18 BNA OSHC 2064, 2069, 2000 CCH OSHD ¶ 32,053, p. 48,005 (No. 96-1719,
2000) (applying similar requirement of Third C ircuit).9 To establish “reasonab le

8
Either party can appeal this case to the Fourth Circuit because the violative condition and
the employer’s principal office are in Virginia. See section 11(a) & (b) of the Occupational
Safety and He alth Act of 1970 (“the Act”), 29 U.S.C. § 660(a) & (b). NLL may also appeal
to the D.C. Circuit. See section 11(a) of the Act, 29 U.S.C . § 660(a). W here it is highly
probable that a Com mission de cision would be appealed to a particular circuit, the
Commission has generally applied that circuit’s precedent in deciding a case, even though
it may diff er from the Co mmiss ion’s pr ecede nt. E.g., Kerns Brothers, 18 BNA OSH C at
2067, 2000 CCH OSHD at p. 48,003. We therefore apply Fourth Circuit precedent here.
9
NLL claims that its superintendent’s actions, like those of the foreman in Ocean Electric,
were so idiosyncratic and unforeseeable as to be u npreven table. But as N LL itself
recognizes, the foreman in Ocean Electric “accidentally left the door open on a switch gear
unit, in violation of company policy.” By contrast, NLL’s superintendent made a series of
conscious decisions: not deenergizing the switch; failing to provide his crew with, and
require the use of, appropriate personal protective equipment; failing to give them ade quate
instruction with respect to the danger of high-voltag e energize d parts or the need to m aintain
a minimum safe distance; assigning the least qualified employee to perform the most
(contin ued...)
 16

forese eability,” the Secretary must show that there were inadequacies in the em ployer’s
safety program , training or sup ervision, based on whether the employer “‘has established
workrules designed to prevent the violation, has adequately communicated these rules to its
employees, has taken steps to discover violations, and has effectively enforced the rules when
violations have been discovered.’” Pennsylvania Power and Light Co., 737 F.2d 350, 358
(3d Cir. 1984) (emphasis omitted)(citation omitted ), cited with approval in L.R. Willson and
Sons, Inc. v. OSHRC, 134 F.3d 1235, 1240 (4th Cir. 1998), cert. denied, 525 U.S. 962
(1998 ).
In this case, the Secretary asserts that she sought evidence of NLL’s safety training
and enforc emen t in her in terroga tories du ring disc overy, but NLL p rovided o nly “scant”
information in response , in the form of a letter to the Navy’s ROICC, NFEC, describing the
safety program that NLL would impleme nt for the co ntract, which the Secretary introduced
into evidence. We agree with the Secretary’s argument that any deficiencies in N LL’s
response should be taken as establishing that there was no such evidence, not that the
Secretary failed to carry her burden. See O cean E lectric C orp., 594 F.2d at 403 n. 4
(recognizing the Secretary’s dilemma, stating, “The re is no reason, of course, that, when a
question concerning the adequacy of a training program is under consideration by the
Secretar y, he may not require the employer to produce all relevant information as in any other
civil case”).
NLL has a rule in the safety program noted above, stating that it will “[e]stablish a
safe zone area between the work area and the energized parts of the substation so that all live
circuits and parts clear the designated work area by at least 5 feet.” (Em phasis a dded).
Howeve r, NLL’s president Ronald Neighbors told the compliance officer that this clearance
rule was “meant to keep other people out of the substation” and was applicable to “outside
people ,” not NLL employees. In other un rebutted statements to the com pliance officer,
contained in the compliance officer’s interview notes introduced into evidence by NLL,

9
(...continued)
dangerous work; and violatin g the minim um safe d istance him self. His actions were not “an
isolated inciden t of unf oresee able or id iosyncrat ic beha vior.”
 17

Neighbors acknowledged that there is “[n]o company policy established for minimum
distances to maintain f rom energ ized lines,” rath er “it’s up to the supervisor to determine
[the] safe distance needed . . . .” The com pliance of ficer testified th at, consistent w ith his
notes, Neighbors told him that Light had received no training in high voltage other than at
weekly toolbox safety meetings.
Because the only specific distance rule that NL L provided in m eeting its discovery
obligations was the five-foot rule, and NLL did not rebut the statements from Neighbors, we
find that the Secretary established that NLL had not given any instructions to Northrup as to
minimum clearance distances for employees to keep from high-voltage energized parts.
Compare L.R. Willson, 18 BNA OSHC at 1698-1699, 1999 CCH OSHD at p. 46,621
(specific instructions to supervisor earlier in day from top man ager at site). We therefore
find that the Secretary has shown tha t Northrup’s failure to maintain the minimum distance
himself or to ensure that his crew members did was reasonably predictable and preventable.
We also find that Northrup’s f ailure to take ordinary precautions, much less
extraordinary ones, wh en work ing in the vic inity of energize d parts wa s reasonab ly
predictable in light of the lack of clea r guidance in NLL ’s safety progra m. NLL stated in a
letter to the Na vy tha t its gener al safety p olicy under the contract was to comply with the
provisions of the “occupational safety and health act” and enforce “Federal standards for safe
practice s.” Yet most of N LL’s specific w ork rules are apparently geared tow ard electrical
employees working on electrical equ ipment. O ne rule provides that “all equipm ent as we ll
as circuits to be worked on” shall be deenergized and personnel protected by clearance
procedures and grounding. Another rule lists the variou s forms of insulating eq uipment to
be provided “as necessary” to “[p]ersons working on electrical distribution systems.”
Although these rules may satisfy some elements of an adequate safety program, the
record does not sh ow wh ether they even applied to th e bracket installation work at issue
here.10 Even assuming the rules would a pply, they fail to prov ide any guida nce relating to

10
In vacating Citation 1, Item 2, alleging a willful violation of 29 C.F.R. § 192 6.416(a)(4),
which is not on rev iew, the jud ge found that Light, in performing his w ork in holding up the
(contin ued...)
 18

the circumstances under which these precautions must be taken. In fact, NLL president
Neighbors implied that use of available insulating blankets was left completely to a
supervisor’s discretion. Nor is there any evidence that the “safety policy” and rules were
effectively commu nicated to Northrup or other employees, that NLL monitored Northrup or
other employees for compliance with them, or that any type of enforcement ever occurred.
Moreover, evidence of NLL’s safety program and rules, including their communication and
enforcem ent, is within NLL’s own control, and the Secreta ry properly reques ted its
production. Responsibility for any evidentiary deficiencies on these points, theref ore, rests
with NLL . See CF&T Available Concrete Pumping, 15 BNA OSH C 2195, 2197 n. 6, 1991-
93 CCH OSH D ¶ 29,945, p. 40,937 (no text of footnote 6) (N o. 90-329, 1993). In these
circumstances, we find that the Secretary has established that NLL did not implement
adequate measures to protect its employees from the hazards associated with working in the
vicinity of high v oltage electrica l equipme nt. 11 Accordingly, we conclude that the Secretary
has shown that superintendent Northrup had actual and constructive knowledge of the
violation, that his conduct was foreseeable and preventable, and that his knowledge is
therefo re prop erly impu ted und er applic able Fo urth Ci rcuit pre ceden t.
IV. Was Light’s Conduct Unpreventable?
We next turn to NLL’s argument that backhoe ope rator/laborer Light’s conduct was

10
(...continued)
bracket, was not working on equipme nt that had a source of electric poten tial.
11
NLL argues that OSHA had found its safety program adequate. This claim apparently
refers to the comp liance offic er’s note referring to th e written pro gram, wh ich appea red to
have a five-foot rule. As explained by NLL management, however, the rule was not for
employees. NLL has not introduced evidence that it had instructed Northrup prior to the
accident to take any m easures, suc h as reque sting the 45- minute sw itch isolation or using
insulated blankets, to protect the employees working in the vicinity of energized parts. Even
assuming its safety rules con cerning w ork on elec trical systems cou ld be cons trued as
applicable here, NL L did not e stablish that the rules were adequately communicated or
enforced. None of what NL L relies on rebuts the Secretary’s showing. Compare Kerns
Brothers Tree Service, 18 BNA OSHC at 2069-72, 2000 CCH OSHD at pp. 48,005-07
(evidence of employer’s training and enforcement show noncompliance was not reasonab ly
foreseeable, applying Third C ircuit test).
 19

unpreventable. To establish the defense of unpreventable employee misconduct, the
evidence must show that the employer (1) had a work rule designed to prevent the violative
condition, (2) adequately communicated that work rule, (3) took reasonab le steps to discover
violations of the rule, and (4) effectively enforced th e rule w hen it w as viola ted. E.g.,
Capform, Inc., 16 BN A OS HC at 2 043, 199 3-95 CC H OS HD at p . 42,357; see Forging
Industry Association v. Secretary, 773 F .2d 143 6, 1450 (4th Ci r. 1985 ) (en ba nc), citing
Ocean Electric, 594 F.2d at 398. Even if the defense had been timely raised,12 we agree with
the judge that the evidence does not establish that laborer/backhoe operator Light’s conduct
was unpreve ntable. Eve n the first elem ent of the d efense is not established because, as
discussed above, NLL did not have a clearance work rule that, as interpreted and enforced
by NLL management, was designed to prevent the violative condition. Even assuming that
it had an adequate work rule, there was no evidence that it was specifically communicated
or effe ctively en forced , nor tha t NLL took re asonab le steps to detect v iolation s of it.
With no specific work rule, the matter was left to the supe rvisor’s discretion. He gave
no instructions as to specific distances to keep from energized parts. Northrup admitted to
the compliance officer that he had not discussed safe clearance distances with the crew.
Instead, Northrup told Light o nly that: “The th ing is hot, do not get up.” We find that those
words were n ot spec ific eno ugh to a ddress the con dition at issue. See, e.g., Union Electric
Co., Geraldine District, 11 BNA OSHC 1280, 1281, 1983-84 CCH OSHD ¶ 26,487, p.
33,682 (No. 7 7-304 9, 1983) (instructions with no specific clearance distances from energized
parts found inadequate where section 1926 .950(c) cited ); The Kansas Power & Light Co.,
5 BNA OSH C 1202, 1205-06, 1977-78 CCH OSHD ¶ 21,696, p. 26,059 (No. 11015, 1977)
(same); Enfield’s Tree Service, Inc., 5 BNA OSHC 1142, 1144, 1977-78 CCH OSHD
¶ 21,607, p. 25,935 (No. 9118, 1977) (warnings to “stay clear” or not to w ork “too clo se” to
the energized area were inadequa te where m inimum c learance o f ten feet sp ecified in
standard). Moreover, Northrup’s general warning was eclipsed by the fact that a short time

12
The Secretary argues that NLL waived the unpreventable employee misconduct defense as
to Light because it did not plead it in its An swer, nor d id it amend its Answ er when it
referred to the defense in its prehearing submission.
 20

later he enlisted Light’s assistance in a manner that required Light to “get up” near the
energiz ed part w ithout fu rther w arning s or insu lating eq uipme nt.
The facts in this case resemble those in REA Express, Inc. v. Brennan, 495 F.2d 822
(2d Cir. 1974), cited approvingly by the court in Ocean Electric, 594 F.2d at 400. In REA
Express, supervisory personnel permitted untrained employees to co nduct electrical repairs
without protective equipment such as rubber gloves or mats. “[T]h e repairs were attempted
with the full kno wledge o f REA supervisor y personnel in a setting which presented
maximum peril and was devoid of rudimentary safety equipment.” 495 F.2d at 826.
According to the Second Circuit, “This was not a case of idiosyncratic or unexpected
employee behavior.” Id. As w ith the de ceden t in the ca se befo re us, Li ght, there was no
evidence that the employees in REA Express had ever been instructed to handle equipment
“which had such a potential for mortal injury.” We therefore conclude that NLL has failed
to establish the affirmative defense that Light’s conduct was unpreventable.
Having rejected the unpreventable employee misconduct defense, we conclude that
the Secretary proved a violation of section 1926.957(a)(3) by a preponderance of the
eviden ce.
V. Was the V iolation Willful?
A violation is willful if it is committed with (1) intentional, know ing, or voluntary
disregard for the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the
Act”), or (2 ) plain indiff eren ce to emp loyee safe ty. E.g., George Campbell Painting Corp.,
18 BNA OSH C 1929, 1934, 1999 CCH OSHD ¶ 31,935, p. 47,390 (No. 94-312 1, 1999);
Williams Enterprises, Inc., 13 BNA OSH C 1249, 1256, 1986-87 CCH OSHD ¶ 27,893, p.
36,589 (No. 85-355, 198 7).13 “A willful violation is differentiated from a nonwillful one by

13
The Co mmission ’s criteria for willfulness would not yield a different result here than the
slightly different formulation used by the Fourth Circuit in Intercounty Construction Co. v.
OSHRC, 522 F.2d 777, 780 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976)(employer
willfully violates the A ct when it “ intentionally disreg ards the statute or is plainly indifferent
to its requirements”).
 21

a heightened awareness, a conscio us disre gard or plain ind ifferen ce to em ployee sa fety.”
Valdak Corp., 17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD ¶ 30,759, p. 42,740 (No.
93-239, 1995) , aff’d, 73 F.3d 1466 (8th C ir. 1996). A violation is not willful if the employer
had a good faith opinion that the violative condition conformed to the requirements of the
Act. E.g., Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1124,
1993-95 CCH OSHD ¶ 30,048, p. 41,281 (No. 88-572, 1993). The test of good faith is an
objective one--“whether the employer’s belief concerning the factual matters in question was
reasonab le under all of the circumstances” and therefore “nonfrivolous.” Id. Where that state
of mind is shown by the actions o f a superv isory employee, it is imputed to the employer, like
employer know ledge. E.g., Access Equipment, 18 BNA OSHC at 1727, 1999 CCH OSHD
at p. 31,8 21.
We agree with the judge that the violation is properly characterized as willful. The
evidence of heightened awareness here is strong. NLL knew that the bracket installation
work would require its employees to work in close proximity to high-voltage electrical
equipm ent. It also knew of the need for safe clearance distances, as evidenced by its five-foot
rule for “outside people.” The record also shows that OSHA had previously cited NLL for
a violation having to do w ith rubber gloves and mats. On top of this, Northrup had been
warned a w eek earlier by a Nav y construction representative n ot to install the bracket here
until the switch c ould be isolated, a p rocedure th e Navy representativ e stated cou ld be done
in 45 minutes. If this procedure had been done the switch would have been completely de-
energiz ed and the haz ard rem oved.
Despite this level of awareness, superintendent Northrup, a trained electrician, who
knew the switch was hot and that it carried 34,500 volts of electricity, required Light, “a
laborer with no electrical work experie nce,” 14 to work on the live side of the switch, with no
protective equipm ent, while N orthrup w orked on the dead sid e. Assigning Light the most
dangerous part of the task is particularly troubling when we consider that he had the least
training and expe rience in elec trical hazards, and was not wearing appropriate protective

14
NLL’s president Neighbors thus described Light in his unrebutted statement to the
comp liance o fficer, re corded in the int erview notes.
 22

equipm ent. Nor was he protected by any other measure. This failure by NLL to take even
the most bas ic measure s to protect its em ployee w hile placing h im in grave da nger com pels
a finding of p lain indiffere nce. See Anderson Excavating and Wrecking Co., 17 BNA OSHC
1890, 1892 (No. 92-3684, 1997) , 1995- 97 CC H OS HD ¶ 31,228 , p. 43,78 9, aff’d, 131 F.3d
1254 (8th Cir. 1997) (per curiam ). This indifference is underscored by the testimony of
Neighbors, NLL’s president, tha t he did not c onsider inc idents involv ing electric sh ock to
be serio us unle ss they w ere fatal.
It is also clear that NLL failed to make out the good f aith defense to willfulness. NLL
had the burden of proving that Northr up had an objectively re asonable good faith belief that
the violative con duct co nform ed to the require ments of the A ct. See, e.g., Morrison-Knudsen,
16 BNA OSH C at 1124, 1127, 1993-95 CCH OSH D at p. 41,281. We agree with the judge
that the defense was not established. As we have discussed above, NLL provided no
guidance or training to Northrup or other employees regarding minimum safe distances, and
had an inadequate safety program regarding the use of protective equipm ent. The argu ments
it makes on review mainly concern the employer knowledge and unpreventable employee
misco nduct d efense issues, a ll of wh ich hav e alread y been resolve d again st it.
VI. Penalty
The judge asse ssed a pen alty of $49,000 for this willfu l violation, base d on the pe nalty
factors set forth in section 17(j) of the A ct, 29 U.S.C. § 666(j). The gravity of the violation
was, of course , extremely high. The judge gave reductions for size because NLL had 47
employees at the time of the violation, and for history because of no citations within the three
prior years. She gav e no credit f or good f aith. NLL does not sp ecifically take issue on
review with this penalty assessment. We consider $ 49,000 to b e an appro priate penalty under
the section 17(j) factors, and we assess that amount for the willful violation of section
1926.957(a)(3).
Order
We find a w illful vio lation of section 1926.9 57(a)(3) and thus affirm Citation 1,
Item 1. We assess a p enalty of $49,000 therefor.
 23

                        /s/
                        Thomasina V . Rogers
                        Chairman


                        /s/
                        Ross Eisenbrey
                        Commissioner

Dated: July 20, 2001
 SECRETARY OF LABOR,

               Comp lainant,

                     v.                            OSHRC D OCKET N O. 96-0721

NORTH LANDING LINE
CON STR UCT ION C O.,

               Respon dent.

Appearances: For Complainant: John M. Strawn, Esq., and Howard K. Agran, Office of the Solicitor, U. S.
Department of Labor, Philadelphia, PA.; For Respondent: Guilford D. Ware, Esq. and Martha M.
Poindexter, Esq., Crenshaw, Ware & Martin, P.L.C., Norfolk, VA.

Before: Administrative Law Judge Covette Rooney

                               DECISION AND ORDER
    This proceeding is before the Occupational Safety and Health Review Commission pursuant

to Section 10(c) the Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et seq.)(“the
Act”). Respondent, North Landing Line Construction Co., at all times relevant to this action
maintained at a workplace at Substation T-45, Naval Air Station Norfolk, VA., where it was engaged
in construction activities. Respondent admits that it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
BACKGROUND
The record reveals that on December 20, 1995, Respondent was in the process of completing
the last phase of a contract to replace and upgrade 14 switches at the electrical substation at the
Naval Air Station (NAS). An electrical substation is a power distribution center, and the 09 switch
was a link to distribute power to portions of the NAS. The voltage for the 09 switch was 34,500
volts (34.5 kV) from phase to phase. The voltage from phase to ground was 19.9 kV. There were
three phases (“A”, “B”, and “C”) spaced 36" apart on this vertical break three pole switch. On the
morning of December 20 the work to be performed included modification of the 09 switch support,
with the bolting of a bracket below the cross arm (See Exh15. G-1). The 09 switch was being
modified in order to accommodate two runs of 34.5 kV cables with terminations. On December 20
the switch was open, and thus the circuit was energized up to the top of the insulator including the
switch blades (live side). The load side cables and terminations were not energized - the jaw side.16
(Tr. 68-70, 363; Exh G-1). A crew of four had been assigned to perform this modification work. The
crew consisted of Darrell Northrop - the foreman and a master electrician, Ronald Marks - a fourth

15
The term “Exh.” refers to the trial exhibits.
16
The transmission of power is interrupted when the switch is open, accordingly the blades
would be raised to the elevated point as shown in Exhs. G-5, 6, & 37. To close the switch
and thereby allow the transmission of pow er, the blades would b e lowered into the jaw s (Tr,
325-327).

                                              24

year apprentice, Brad Seiberlich - a first year apprentice, and Tommy Light - a backhoe
operator/laborer. Mr. Light under the direction of Darrell Northrop climbed a 12- foot fiberglass
ladder in order to assist Mr. Northrop in the installation of the bracket beneath the cross arm of the
09 switch. While on the ladder Mr. Light suffered fatal electrical burns to his upper extremities as
a result of having come in contact with high voltage.
From December 21, 1995 to January 31, 1996, Compliance Safety and Health Officer (“CO”)
Thomas Edwards conducted a fatality inspection of the aforementioned worksite. As a result of this
investigation, on May 14, 1996, Respondent was issued a citation alleging two willful violations with
a proposed total penalty in the amount of $112,000.00. By timely Notice of Contest, Respondent
brought this proceeding before the Review Commission. A hearing was held in Norfolk, Va. before
the undersigned on June 12 - 13, and September 3-4, 1997. The parties have submitted Post-Hearing
Briefs and Reply Briefs, and this matter is ready for disposition.
SECRETARY’S BURDEN OF PROOF
The Secretary has the burden of proving his case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (the employer either knew or with the exercise of reasonable diligence
could have known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
THE EVIDENCE
The record discloses that the switch was mounted approximately 10 feet above the ground
on a single box structural steel column, mounted on a concrete base. The cross arm is a fixed beam
perpendicular to the main support beam. The main support beam and cross arm were grounded (Tr.17
110-111, 148). There had been a change order in the NAS contract which required that Respondent
install the cable support steel/bracket on 09 Switch, and the cables that were to land on that cable
support (Tr. 522, 535). At the time of the accident, Mr. Light was assisting Mr. Northrop to install
the steel bracket to the underside of the cross arm of 09 switch pedestal. The cross arm was
approximately 24 inches or less from the top of the energized B phase insulator (Tr. 316)18. The
bracket being installed was approximately 5"-6" in height, which would mean the top of the bracket
was approximately 28 inches from the top of the insulator.19 The bracket was being secured to a
plate which was welded underneath the cross arm by two nuts and bolts (Tr. 612, 617, 178). The
plate was 5/8" with a 5/8" plate above it (Exh. G-39) The bottom of the bracket was approximately

17
The term “Tr.” refers to trial transcript.
18
The three insulators w ere made of ten porc elain skirts or rin gs. They con duct electricity
and were energized down to the tenth skirt. From the top, each skirt lowered the voltage
approxim ately 2,000 volts. Thus, the top of the insulator was 20,000 kV and the voltage at
the bottom skirt was 1,00 0 to 2,00 volts (Tr. 295-31 8 and 320).
19
Mr. Northrop testified that his measurements of the top of the bracket to the closest
energized part was 33 inches to the bottom and “ like twenty- eight to the top”(TR. 552). See
also Exh. R- 5, p. 24 of 30. CO Edwards’ notes indicate that the channel was 5" in height and
6" inches in height. (Exh. R-5, pp. 4, 10 and 24). Mr. Brosz refers to the bracket’s height as
6"(Tr. 6 99).

                                              25

33 inches from the top of said insulator (Tr. 317, 552, &614; Exh. R-5, pp. 4 & 5 of 30). A wrench
found on top of a plate which was under the cross arm was approximately to 25.5" from the top of
the insulator (Tr. 749-750; Exh. R-5, pp. 25 & 26 of 30)20. Also present was a nut and washer on
the top surface of the switch support plate was between 26-27 inches from the top of the insulator
(Tr. 309, 317-318; Exh 14, 18, 36).
On day of accident, Thomas Eason, Resident in Charge of Construction for the Naval
Facilities Engineering Command was one of the firstpersons to investigate the accident scene. Upon
his arrival, he first made sure the power was off and then proceeded to learn from the witnesses
where the ladders had been placed. He had the ladders set up and climbed one, and at that time
observed a crescent wrench lying on top of the beam of the switch which he photographed (Tr. 67,
72, 87; Exhs. G-1 at “G” and “H”; 13 and 16).
CO Edwards’ investigation consisted of site observations and employee interviews, and
participation in the site visit by Herman Brosz, a consultant hired by the Navy to investigate what
may have caused the accident. His investigative notes reveal that during his interview with Mr.
Northrop on December 22, 1995, Mr. Northrop told him that he had used the crescent wrench. Mr.
Northrop also indicated to him during this interview that he felt that the work was being done safely
for two reasons because any fault that occurred near them would be taken to ground, and this in
conjunction with the clearance distance would provide a safe work area (Exh R-5, p. 10 of 30).
During the course of a second interview with CO Edwards on January 16, 1996, Mr. Northrop stated
that he knew that he crescent wrench was on top of the main support cross arm, but he did not
remember who put it up there. (Exh, R-5, p. 12 of 13). CO Edwards’ notes of an interview with Mr.
Marks on December 22, 1995, reveal that Mr. Marks indicated that Messrs. Light and Northrop were
doing the bolting, and that Mr. Light had tried to use the crescent wrench but it was not doing any
good so he set it on the main switch support. He stated that the crescent wrench was placed on the
support approximately 5 seconds prior to the accident (Exh R-5, p. 17 of 30). He also informed CO
Edwards that he did not hear anything about the energized line or distance to keep away. However,
during a subsequent interview on January 16, 1996, Mr. Marks stated that he did not remember who
had installed the bolts in the bracket. He again stated that Mr. Light had set the crescent wrench up
on the cross arm of the main support, and that he had seen Mr. Light trying to use the crescent
wrench to tighten the bolts (Exh R-5, p. 18 of 30).
CO Edwards acknowledged during his testimony that Mr. Brosz’s theory as to the events
which occurred immediately prior to the accident differed from the account which employees at the
scene of the accident provided him. He testified that the witnesses’ statements would lead one to
believe that Mr. Light did not have to work above the bracket. This theory differed from the findings
of Mr. Helmut Brosz, who had been retained by the Navy to investigate the accident. Mr. Brosz
concluded that Mr. Light performed work above the bracket. In recommending the instant citations,
CO Edwards accepted the Brosz theory (Tr. 234)
Evaluation of the Expert Testimony
The parties in this matter each presented an expert witness in support of their positions.
Complainant presented the testimony of Helmut Brosz, a registered forensic engineer and a Director
of Institute of Forensic Electropathology - an institute which has a very large data base of electrical
accidents involving failures of electrical equipment such as insulator failures, electrocutions, and

20
The undersigned notes that Mr. Brosz initially testified that the wrench was 22" from the
top of the insulator (Tr. 317). He reviewed his notes and corrected his testimony to reflect
a measurement of 25.5" (Tr. 740-750). CO Edw ards testified that the wrench was
approximately 25 inches (2 4 3/4") from the top o f the insulator (Tr. 196).

                                              26

electrical fires. His consulting firm does, inter alia, investigations of electrical equipment failure and
forensic Electropathology - i.e., injuries and death to animals and humans21 (Tr. 260-264). The
Respondent provided the expert testimony of Webster Chandler, a certified professional engineer
and a consultant whose firm is involved in the design of electrical systems (Tr. 592). He is familiar
with the electrical system in the substations at various naval installations in Norfolk.22 He also has
investigated accidents concerning persons having contact with high voltage power lines via direct
contact or through cranes or other apparatus (Tr. 596). Additionally, he is currently an associate
member of the National Academy of Forensic Engineers (Tr. 597).
The record reveals that underlying facts which each expert based his opinion differed in one
significant aspect. The eye witnesses assert that Mr. Light never rose above the bracket. Mr. Brosz
did not believe the statements of the employee witnesses, whereas Mr. Webster Chandler, the
Respondent’s expert, based his opinion upon the statements and personal interviews with said
employees (Tr. 731-732, 602).
It was Mr. Brosz’s opinion that had Mr. Light not come close enough to cause a fault or
short circuit with the insulator, nothing would have happened, and he was also of the opinion that
there was evidence at the scene which lead him to conclude that he had in fact come in contact with
the insulator (Tr. 345). It was his opinion that Mr. Light was on the 12 foot ladder, and at some point
in time he climbed up on the ladder to three or four rung from the top and with a pencil in his hand,
put his left hand on the operating bar and tried to hold onto the insulator. As he touched it current
flowed and a short circuit was drawn through his body. His right hand was on the B phase insulator
and at that time he drew an arc to his right hand. The current flowed through his hand, chest and
tissue of the left arm and as the current went to ground he was throw him from the ladder and the
pencil fell (Tr. 334- 335, 338). The phase to ground fault was caused by Mr. Light’s body creating
the short circuit by which he was electrocuted (Tr. 338-339). An arc blast was caused by Mr. Light
touching the “B” phase insulator which created a super heated ball of conductive gas approximately
4 feet in diameter and expanding under thecross arm. This sphere of hot conducting gases enveloped
phases A and B and caused numerous faults between the insulators of the three phases and from the
tops of the three insulators to the grounded support mast. The conductive gas cooled as it expanded
and became nonconductive within a fraction of a second (Tr. 293-294, 311, 331). The medical
examination noted that Mr. Light was both electrocuted by high voltage and suffered external burns
(Tr. 341-341; Exh. G-26). The examination also showed that Mr. Light had electrical burns and
thermal burns (Tr.686-689; Exh. G-26). Mr. Brosz explained that electrical burns are caused by
current passing through the body, and thermal burns are caused by external heat such as that
produced in an arc blast (Tr. 341-342, 714-717).
During the course of his testimony, Mr. Brosz acknowledged that he heard at the hearing that
Mr. Northrop had on a hard hat, however, his review of the interview statements disclosed that Mr.

21
Mr. Bro sz testified that the study in the field of forensic Electropathology consisted of
studying the phenomena of electric current passing through the human body, the affects of
electrical accidents on the human body and on electrical equipment and the failure or
breakdown or involvement of electrical apparatus (Tr. 262-263 ).
22
Mr. Webster testified that his firm did not do any of the design at the subject substation,
but did design in peripheral areas that were served from circuit breakers from said substation
(Tr. 595).

                                               27

Northrop did not have on a hard hat.23 He testified that if he had been bolting this bracket or if he
had been holding up the bracket, his hands would have been burned and or his hair singed because
he would have been within the sphere of arcing (Tr. 335-336). The flash would have blinded him
if he had been looking at Light as the testimony suggest (Tr. 336). He believes Northrop was quite
a ways down on the ladder, or not in the position he suggests. It was his opinion that the evidence
showed that *Mr. Northrop and Mr. Northrop did more than work under the insulator, and hands
frequently went above the bracket/channel because the two bolts that were tightened required that
the hand be within 28 inches of the top of the energized insulator. He believed that Mr. Light was
doing a lot more than just holding up the channel - he was working the wrench and marking the holes
because he had the pencil (Tr. 337). The arc marks on wrench helped him place it. He testified that
there is a lot of current where an arc enters and it melts some of the material of the object, in this
instance the wrench, leaving an indelible significant mark (Tr. 279-280).24 He also observed several
other significant marks. He saw a left hand print on the bar shown in Exh G-12 and 14, in his
opinion, it is the victim’s left hand (Tr. 280). The shadow was produced by holding onto the round
2-inch bar with his gloved left hand (Tr. 280-281, 286-287)25 He also observed evidence of what
he believed was the right hand making contact with the “B” phase insulator (Tr. 295; See Exh G-17
and 19).26
The other evidence that he found was a pencil at the base of the switch which he testified
was clearly exposed to an arc blast and had been held by a human (Tr. 303). It is his opinion Mr.
Light held this pencil in his hand because of the charring present. He testified that whoever had held
it had significant charring on the right hand, and no one else at the scene was injured or burned,
therefore, Mr. Light must have held the pencil at the time of the accident (Tr. 303-304). It was his
theory that at the time Mr. Light was holding the pencil and at the same time he had his hand on the
insulator (Tr. 306-307). He believed that he was preparing to mark a hole or something for drilling
because the bracket was being held by only two bolts, and he believed that it was the intention to
have additional holes (Tr. 340, 734-738).27 He explained that the pencil had been exposed to the
arc blast and the shadows and damage on it were consistent with exposure to and arc blast and it
having been held in the hand (Tr. 437). Thus, at the time of the accident, Mr. Light was holding the
pencil in his right hand and the left was on the operator rod or cross bar and the right hand was on

23
Mr. Northrop testified tha t he wore a hard h at while on the ladder (T r. 57).
24
Mr. Eas on also testifie d that there w as a dark m ark on the w rench w hich revea led to him
that the wrench had been in contact w ith an arc or spark (Tr. 98).
25
Exh. G-27 arc marks on the operating bar (Tr. 286). Exh. G-28 shows left glove hand
placed over the arm. It also shows left elbow and arm in close proximity to phase A at time
of accident (Tr. 287).
26
The undersigned’s review of the record reveals that CO Edwards’ notes of January 4, 1996
contain similar findings with respect to information obtained from John Eason, ROICC. Mr. Eason
informed him that his review after the accident revealed that Mr. Light and not Mr. Northrop was
installing the bolts and Mr. Northrop was just holding the bracket in place. It was his opinion the
“Mr. Light was high enough... to get close enough to the energized bus and cause an arc - that Light
was touching the switch arm rod at the time & this caused the burn marks”(Exh. R-5, p. 20 of 30).
27
Mr. Chandler corroborated the fact that two additional bolts were to be installed at a later
time (Tr. 626-627).

                                             28

the insulator and the wrist was touching the fourth skirt from the bottom at the time of the accident
(Tr. 307, 309). There was also one washer and one nut on the top surface of the switch support. Arc
marks showed the exact location of the nut and washer at the time of the accident ( Exh G-14 , 18,
30 & 38; Tr. 309-310).
He was certain that the accident occurred the way he described (Tr. 334). The fact that he was
not able to test insulator B does not affect his opinion because he saw nothing wrong with it other
than the damage sustained during the arcing28.
Webster Chandler, a certified professional engineer based his opinion upon what the
eyewitnesses told him, and he testified that there was no reason for Light to go into the unsafe zone
(Tr. 609). Based upon the statement of the witnesses that Mr. Light’s feet or lower part of the legs
were at their eye level, he opined that, in that position there was no way Mr. Light could have put
himself in an unsafe condition (Tr. 609). Furthermore, he testified that there was no evidence that
Mr. Light had ever held the crescent wrench. Although, he acknowledged that the Navy
measurements were 33 inches to the bottom of the steel channel being installed and concluded that
this put the top of that something greater than 28 inches, he was sure that the crescent wrench really
was in the safe zone on top of the mounting plate to which the bracket being bolted (Tr. 609, 614).
Mr. Chandler testified that the work being done on December 20 was the first part of a process in
which new supports were being installed to support new cables. The preliminary work was to be
done on that date, and later the bracket would be secured firmly by the application of two additional
bolts. It was Mr. Chandler’s opinion that there was nothing that had to be marked on December 20.
He pointed out that the crew had bored holes in the top of the bracket to match the four The new
switch only required two bolts at the left hand end, the “A” phase end and two bolts at the “C” phase
end. The bolts holes for the new switch lined up with two pairs of bolt holes already in that plate
(Tr. 613). Thus, in his investigation he found that there would have been nothing to mark with a
pencil from above. No marking was necessary to perform the tasks that were going to be performed
at a later date (Tr. 615-618, 626-627; Exh G-30 and 39 at #6 and #7). It was his position that there
was no reason to mark positions from the top because you had a guide hole from below and you
couldn’t drill a 3/4 hole from the top. (Tr. 627).29 He also testified that he had placed himself in the

28
Mr. Brosz explained that a broken arm defective insulator has broken skirts, large cracks
and a significant amount of contamination on the insulator. This was a new switch and none
of that was present (Tr. 346). He testified that E xhs. G- 3, 7 , 9 and 10, a ll photographed on
December 21, show no evidence of con tamina tion on the insu lators (T r. 347). Furthermore,
if the insulator h ad been c ontamina ted and a f ault had occurred without Mr. Light touching
or causing a f ault, and if he had been in the proxim ity of within four feet of the insulator, he
would have suffered arc burns but not the tissue necrosis and tissue damage the medical
record s show ed (Tr. 3 47-34 8).
29
During rebuttal M r. Brosz testified that Exh G-8 shows four holes, and although no one
agrees where, w e all agree tw o more h ad to be drilled . Howe ver, he believ ed that it wo uld
be difficult to drill f rom und erneath be cause first you n eed pilot ho les and a 3/4 inch drill is
heavy makin g it an aw ful job. He testified that to mak e it easy, one would drill from the top,
so you have an advantage of the weight of the drill an d all pilot holes that you need to drill
prior to that. Add itionally, he opine d that to drill the hole in line with the two unused holes
of Exh G- 8, channe l “B” wo uld be diff icult. He agreed with Mr. Chandler that drilling the
hole on the edg e of a piece of metal w ould be ex tremely difficult. The option suggested by
(contin ued...)

                                              29

position which Mr. Brosz believed that Mr. Light had been, and found it an extremely awkward
position (Tr. 629)30. His observations and inspection led him to believe that there was no reason for
Mr Light to have gone into the position which Mr. Brosz had positioned him in at the time of the
accident.
He believed that there was a phase to phase fault , i.e., a short circuit of some type on that
switch that involved all three phases. He testified that it began as phase to phase fault and the
ground became involved as shown by the burns on the grounded part (Tr. 646). Along the
corrugated part of the insulator on all six insulators there were marks of the type in Exh R-3(d). He
found the marks on Insulator “B”- where Brosz found glove marks - were no different than those on
the other insulators (Tr. 648).31
Mr. Chandler also testified that the Brosz Report was inconsistent with the medical report
(Tr. 653). Medical report says there was evidence of an entry wound on the left palm and there was
no evidence in report of an exit wound. If it had happened as Brosz said, the wound on the left hand
would have been an exit wound and there would have been some evidence of an entry wound on the
right hand. 32 Additionally, in his experience if Mr. Light had current of 19,900 or 15, 000 volts pass

29
(...continued)
Mess rs.. Chandler and Northrop of drilling through th ese two e xisting holes from un derneath
was an option but a difficult one. He testified that the best choice would be to make two
fresh holes, and that is what Mr. Light was going to do in his opinion - that’s why he had the
pencil in his hand and from up top he would have a good “bird’s eye view” to make sure the
was g oing to mark th e spot w here he would drill hole s (Tr. 73 4-38).
30
CO E dwards te stified that he had no problem p ositioning himself into this position (Tr.
222).
31
Mr. Webster also testified that the SCADA (supervisory control and data acquisition) Report
would have provided information and have shown the trouble sensed by the relays and indicate if
there was a phase to phase condition or phase to ground condition (Tr. 658). This report shows the
operation and tripping times of devices- circuit breakers, and depending upon what relays operate
it could show whether a phase to phase or phase to ground occurred. Therecord however reveals that
he did not review such reports. Mr. Brosz testified this information would not have made any
difference to him because there was not enough current flowing through the phase to ground fault
through Mr. Light to have caused a relay to operate. He also stated that this information did not
make any difference for purposes of investigating the cause and origin of the accident. (Tr. 441-444).
In view of Mr Webster’s lack of review and Mr. Brosz’s position with respect to these reports, the
undersigned accords the testimony concerning the SCADA Report very little weight.
32
During re buttal, Mr. B rosz explain ed that the inju ry in Mr. Lig ht’s left hand could be
deemed and entry or an exit wound because of the speed the current enters and exits - 60
times a second (Tr. 679). He explained that both hands had electrical burns and injuries, and the
reason the so-called entry wound on the left had was so pronounced was because the left hand was
firmly grasping the round operating bar - a grounded conducting operating metal rod, whereas the
right hand was not holding onto a metallic object but the side of the outer edge of the right hand was
in contact with the ceramic insulator, so on that hand while they are electrical burns they are of a
different type - smaller pin holes
(contin ued...)

                                              30

through him, he would have expected him to have been killed instantly (Tr. 653). 33 He believes
when the phase to phase surge occurred a high voltage between phase A and B on this switch ionized
the air and caused an arc-over between the phases A and B, and B and C, thus entire switch became
a part of a ball of fire. Thus, this arc enveloped the entire switch and the area around it (Tr. 659).
A person in this arc would receive thermal burns, heat burns and be involved in current flow through
their body (Tr. 659). When asked how such a ball of fire would emanate, he responded that it could
have been caused by a number of things - lightening, switching surges when circuit breakers are
operated (Tr. 658 ).
The bases for conflicting opinions of the experts revolves around the eye witness that Mr.
Light never rose above the bracket. Mr. Brosz finds that in spite of these statements the physical
evidence indicates that Mr. Light had to have gone beyond the bracket which was being installed.
While Mr. Chandler makes his findings based upon the fact that Mr. Light had no reason to do
anything beyond holding up the bracket from below said bracket. In weighing the conflicting
opinions of the experts, the undersigned finds that it is necessary to evaluate the credibility of the
statements of the eyewitnesses.
Eyewitness Testimony
Darrell Northrop provided a detailed account of the events leading up to the accident. He
testified that upon arrival at the job trailer on December 20, he sent Messrs. Marks and Light to
Respondent’s Chesapeake office to pick up steel for the 09 switch. He then met a representative
from Public Works at the substation so that they could open it. Once inside the substation he and
Mr. Seiberlich retrieved a 12-foot fiberglass step ladder and went out to 09 switch to begin taking
measurements for the steel the others had gone to pick up. He testified that he stood on the ladder
and took the measurements from below the cross arm. He testified that the measurements could not
have been taken from the top. He explained that if he had taken the measurements from the top he
would have been just guessing on where to drill the holes, because the holes would have been down
approximately 4 inches which was the cross arm, and approximately another three-eighths to a half-
inch, which is the steel strapping was underneath the cross arm (Tr. 538). Thus, the measurements
had to have been taken from below. As he took the measurements, Brad Seiberlich stood at the
bottom of his ladder. He explained that he removed the existing bolts that were in the switch and
installed longer ones. He stated that he had used a crescent wrench to remove the existing bolts (TR.
539). After he took the measurements and removed the bolts, he and Brad went into the substation
to warm up and wait for the steel to arrive (Tr. 539). Once the Messrs.. Marks and Light arrive with
the steel, he then measured the steel, marked where the holes were to be, and started drilling. When
the first couple of pieces had been drilled, he went outside to look at the steel and see how he was
going to put up the new piece of steel. Mr. Seiberlich came out with him and was sent to get an 8-
foot wooden step ladder (Tr. 540). Mr. Light (“Tommy”) came out and asked what they were doing.
He testified that he explained to Tommy that they were going to mount the piece of steel on the

32
(...continued)
(Tr. 679-683).
33
During rebuttal, Mr. Brosz explained that low vo ltage electroc utions poten tially can kill
faster because they can put an individual’s h eart into fibrillation. High voltage electrocutions
do not put the heart into fibrillation because the high voltage seizes the chest muscles and
prevents the heart from fibrillating - once the current stops the chest contracts and the he art
in many instances starts to beat again (Tr. 684-685). He went on to explain that Mr. Light
died when his body could no longer deal with the dead tissue.

                                             31

bottom of the cross arm and the support, and added that “the thing is hot, do not get up”. He also
testified that he gave this same instruction to Brad and Ron (Tr. 541). Mr. Light left and Mr.
Seiberlich then arrived with the 8-foot step ladder (Tr. 541). He told him that he wanted the ladder
right underneath the new piece of channel. Once the ladder was set up, Tommy returned with the
piece of steel. Tommy handed him one end of the steel and he took the other, and as Tommy walked
up the fiberglass ladder, he walked up the wooden step ladder (Tr. 542). He explained that Tommy
was on the fiberglass ladder because it was closest to him. The steel was approximately 30 inches
in length, and thus, they could not have been more than 30 inches apart (Tr. 543). They held the
steel in their hands above their heads up and lined it up over the bolts that were already sticking
down through the switch support. Tommy held it in place while position himself to where he could
rest the steel on the top of my head. He then installed the lock nut, lock washer and nut on both bolts
finger tight (Tr. 544). Once they were on finger tight, he asked Mr. Seiberlich to go to his truck and
get a socket and a ratchet and an extension that could fit up into the 6-inch channel to tighten the
bolts. He testified that Tommy never tightened the bolts and he never saw him use the crescent
wrench (Tr. 544). He testified that because the top of his head was against the bottom of the steel,
Tommy’s head was below his and Tommy’s hands were above his head holding the channel. He
explained that once he had finger tightened the bolts, he stepped down off the ladder because his
head was right against the steel. (Tr. 545). He was turned around on the 8-foot step ladder with his
back to the step ladder and he was facing away towards the ground in the opposite direction when
the accident occurred. He heard the arcing and jumped from the ladder. He testified that he never saw
Tommy go above the cross arm or channel, and furthermore, it was not necessary for him to go
above the cross arm. He testified that if Tommy had gone above the cross arm he would have known
it because he was right beside him (Tr.546-548)
Brad Seiberlich’s testimony corroborated the sequence of events as set forth by Mr. Northrop
(Tr. 496-501). He also testified that he never saw Mr. Light doing any bolting or use the crescent
wrench. Mr. Northrop did the bolting (Tr. 500). While he was holding the ladder, Mr. Northrop was
hand tightening the bolts in the piece of steel and when Mr. Northrop could not get the wrench into
the channel he sent him to get a socket from his truck. By this time Ron Marks came out, and Ron
continued to hold Mr. Light’s ladder while he went to get a socket. He testified that while he held
the ladder for Mr. Light, his eyes remained in the area of Mr. Light’s caves and ankles, and Mr.
Light’s feet never went above his eye level. Mr. Light’s head remained below the steel they were
hanging (Tr. 502). He never saw any part of Tommy’s body rise above the cross arm (Tr. 503). As
he was at the truck looking for sockets he heard a big arc, big bang and saw Tommy fall off the
ladder (Tr. 503). He also testified that prior to working on the switch, Mr. Northrop told him on
numerous occasions that the switch hot and to be careful. (Tr. 506). He also acknowledged that there
were no mats to insulate the portion of the switch which was live, and no one was using gloves rated
for high voltage because they believed they were in a safe distance (Tr. 49).
Ron Marks’ testimony also corroborated the testimony of Mr. Northrop concerning the
events which led to the accident (Tr. 509-510). He testified that when he arrived to hold the ladder,
Mr. Light was not doing anything - he was just there waiting for the socket (Tr. 517). He had already
lowered his hands from the bracket. When he first came out of the substation, Mr. Light was holding
the bracket above his head with his head below the bracket. He also testified that at the time he was
holding the ladder, Tommy’s feet were at his eye level(Tr. 511, 517-518). He never saw Tommy rise
above the metal bracket being installed and there was no reason for him to rise above that level (Tr.
512). When the accident occurred, he was looking straight up at Tommy. He saw a bright flash of
fire light which caused him to see spots and he had to turn away( Tr. 511-512, 517). Credibility
and Evaluation of Expert Testimony
A determination as to whether Mr. Light rose above the bracket bing installed can only be

                                             32

made after evaluating the credibilityof the employee eye witnesses. Once this determination is made
the undersigned must find if there is any persuasive circumstantial evidence. The undersigned
having observed the demeanor of the eyewitnesses, finds that the relationship which the three eye-
witnesses presently have with the respondent had a significant influence with regard to their
testimony. Each witness has a significant employment history with the Respondent, and
furthermore, Mr. Northrop was and still is the supervisor of Messrs. Seiberlich and Marks.34 The
undersigned also notes that Mr.Seiberlich presently resides with his father, who is the Vice President
of Respondent (Tr. 42). Each of these witnesses maintain that Mr. Light never went beyond the
bracket which was being installed. The undersigned has evaluated these facts in conjunction with
the physical evidence which Mr. Brosz described was present at the scene of the accident, and finds
that Mr. Light would have never been fatally injured but for his presence above the bracket. The
undersigned finds that their version of the facts support a finding of bias on the part of the witnesses
in the interest of their employer, the Respondent. The undersigned also finds that Mr. Northrop’s
testimony certainly was motivated by a need of self-preservation. For example, CO Edwards
testified that at the time of his investigation Mr. Northrop was very concerned about being sued (Tr.
215).
The undersigned has also evaluated the inconsistencies which the record contains with
respect to statements these employees have made concerning the accident. Mr. Eason testified that
during the Navy’s investigation, these witnesses informed him that Mr. Light had been doing the
bolting. Mr. Northrop told him that he had been holding up the bracket (Tr. 103). Mr. Eason’s
investigation took place immediately following the accident, and he testified that he obtained these
statements within 30 minutes of the accident (Tr. 103, 117; Exh. R-5, p. 20 of 30). Additionally, CO
Edwards’ notes reveal that Mr. Marks initially told him that Mr. Light and Northrop were doing
bolting. During his second interview Mr. Marks stated that Mr. Light set the crescent wrench up on
the cross arm of the main support, and he stated that he had seen Mr. Light trying to use the crescent
wrench to tightened the bolts. Mr. Marks also stated during the course of that time that Mr. Northrop
had not said anything to him about the switch being hot, although he knew it was hot (Exh. R-5, pp.
17 & 18 of 30). The undersigned accords significant weight to the contents of these statements
because they were made nearer in time to the accident .
It is well settled Commission precedent provides that reasonable inferences can be drawn
from circumstantial evidence. Oakland Construction Company, 3 BNA OSHC 2023 (No. 3395).
The record supports a finding that the crescent wrench and nut and bolt were found in areas above
the bracket being installed. The record reveals that the crescent wrench and nuts and bolts were on
a plate below the cross arm. The undersigned finds that this would place these items less than 28
inches from the top of the energized insulator. The undersigned finds that in light of the work that
was being done and the location of the wrench, which was on the side Mr. Light was working, the
preponderance of the evidence reveals that Mr. Light placed the wrench in said location35. The

34
Brad Seiberlich i s pre sently a third year apprentice with a 3 1/2 year em ployment history
(Tr. 496-497); Ronald Marks is presently an electrician with a 8 1/2 to 9 year employment
history (Tr. 507-508); Darrell Northrop is presently a job foreman who has work ed with
Responden t on and off app roximately 14 years (Tr. 520-521).
35
The undersigned also notes that Mr. Eason testified that from Mr. Northrop’s location he
could not have pushed it under the cross bar or reached around to put it in that position (Tr.
101). CO E dwards a lso testified that it would not have been possible to slide the wrench
(contin ued...)

                                              33

Respondent provided no evidence which would have rebutted the Complainant’s findings concerning
the location of the wrench. The undersigned also notes that CO Edwards’ notes of his interview with
Mr. Northrop, indicates that Mr. Northrop informed him that he knew that the crescent wrench was
put on the main support switch arm but he did not remember who put it up there (Exh. R-5, p.12 of
30). Mr. Northrop should have known if he himself had placed it there. The undersigned also
recognizes that Mr. Brosz’s explanation that Mr. Light had a pencil in his hand was a factor which
he concluded based upon the presence of the charred pencil at the base of the switch (Tr. 435-436).
Mr. Brosz acknowledged that no one had mentioned the pencil to him and that it was he who first
discovered it during his visit (Tr. 436). The undersigned finds that his explanation for the presence
of the charred pencil was consistent with his observations and the work which was being performed
the morning of the accident.36 The record reveals that additional drilling was to be done later, and
all of the holes in the steel were not free of interference. This circumstantial evidence supports a
finding that the pencil was being utilized during this task. The undersigned further finds that having
reviewed all of the physical evidence presented by both parties, that the testimony of the
Respondent’s witnesses with respect to Mr. Light’s location at the time of the accident is not
credible.
Accordingly, in light of the fact that Mr. Chandler based his opinion upon the facts as
presented by the eye witnesses, his opinion is not well helpful to the undersigned. Mr. Brosz
testified Mr. Brosz testified that after hearing the eye witnesses testify at the hearing, he still would
not change his findings(Tr. 731-732). He based his opinion upon his review of CO Edwards’ notes
of the accident, and Edwards showed him where the ladders were located and where various people
were located, and after he saw the evidence on the switch he was able to reenact what happened (Tr.
401-405). The undersigned finds that due to his specialized experience and his qualifications as a
forensic engineer and the Director of the Institute of Forensic Electropathology established his expert
opinion is found to be credible and worthy of conclusive weight. The undersigned is also convinced
that a preponderance of the physical evidence as described by Mr. Brosz supports the opinion of Mr.
Brosz.37
Citation 1, Item 1: Alleged Violation of §1926.957(a)(3)
The standard provides in pertinent part:
Extraordinary caution shall be exercised in the handling of busbars, tower steel,
materials, and equipment in the vicinity of energized facilities. The requirements set
forth in 1926.950(c), shall be complied with.
§1926.950(c), Clearances requires in pertinent part that:
The provisions of paragraph (c) (1) or (2) of this section shall be observed.
...
(2)(I) The minimum working and minimum clear hot stick distances stated in Table V-I shall
not be violated. . .

35
(...continued)
from M r. North rop’s sid e to M r. Light’ s side (T r. 236).
36
The record is void of any other explanation for the presence of the charred pencil. Mr. Northrop’s
only mention of any work where the pencil would have been used, involved the measuring and
marking of the steel where the holes were to be drilled which took place in the substation (Tr. 540).
37
The undersigned also notes that the switch has remained in Respondent’s possession and
Respon dent has n ever had a ny tests perform ed upon it.

                                              34

TABLE V-1 - ALTERNATING CURRENT - MINIMUM DISTANCES

                          |

Voltage range | Minimum working and clear hot
(phase to phase) (kilovolt) | stick distance

2.1 to 15 ....................| 2 ft. 0 in.
15.1 to 35 ..................| 2 ft. 4 in.
35.1 to 46 ..................| 2 ft. 6 in.
46.1 to 72.5 ...............| 3 ft. 0 in.
...
The citation sets forth that on or about December 20, 1995, an employee working on the
energized switch 09 installing a metal bracket violated the minimum working distance required
between the employee and exposed energized parts of the switch. The cited standard specifically
refers to “construction work in energized substations. “Construction work” as used in subpart V,
where the instant standard is contained, includes the erection of new electric transmission and
distribution lines and equipment, and the alteration, conversion, andimprovement of existing electric
transmission and distribution lines and equipment (29 C.F.R. §1926.950). The record reveals that
Respondent was involved in the installation, replacement and modification of existing electrical
equipment, in particular installation of 14 switches in the NAS Substation Building T-45(Tr. 521-
522). Accordingly, the undersigned finds that the cited regulation is applicable.
The Complainant alleges that the instant regulation was violated in two ways: the minimum
working distance was not maintained in working near energized equipment, and extraordinary
caution was not exercised. (Complainant’s Post-Hearing Brief, p. 20. The Respondent maintains that
the Secretary failed to produce evidence that Mr. Light came within the 28-inch unsafe zone, and that
the work performed required the installation of a bracket below the cross arm of 09 Switch.
(Respondent’s Post-Trial Brief, p. 10). The voltage at 09 Switch was 34.5 kV, and thus a clearance
of 2 feet, 4 inches (28 inches) is required. This voltage was measured from the top of each of the
insulators. The record establishes that the bottom of the bracket or channel which was being
installed was 33 inches from the top of insulator B. It is Respondent’s position that there was no
reason for Mr. Light, who was holding one end of the bracket and performing no bolting to come any
closer to the 34.5 kV than 33 inches.
The undersigned finds that the Complainant has proven by a preponderance of the evidence
that Mr. Light did not remain beyond the 28 inch minimum clearance distance and did rise above the
bottom of the bracket. The record establishes that the 28 inch minimum safe distance requirement
was violated a number of times. The first was when an employee placed a wrench on the face plate.
The wrench was within the 28 inch required clearance - 25.5 inches. Additionally, the record reveals
that the 28 inch requirement was not maintained when the first bolt was put into the nut and bolt
into the support bracket. Mr. Brosz testimony is illustrative of thisviolative condition. He explained
that the bolts had to be approximately 2 1/2 inches in length, and a portion of the hand is above the
head of the bolt by approximately 3 inches to lift it in or out.. Thus, the 2 1/2 inches and 3 inches
would bring one within the 28 inch sphere (Tr. 698-699). The preponderance of evidence also
establishes that it was likely that a pencil was used to mark a hole. The marking of the hole from
above the bracket would also have brought one above the bracket and into the 28 inch clearance
distance. The physical presence of the nut and bolt and wrench on top of the face plate within the
safe distance indicate that at some point they were put there, and the testimony makes clear that the
work being done certainly entailed the use of such tools. Furthermore, this distance was violated
when Mr. Light actually came in contact with the B-phase insulator. Additionally, Mr. Northrop

                                             35

testified that he had removed the bolts and performed measurements prior to Mr. Light arriving at
the switch. The work being done would certainly entail the use of such tools.
The undersigned also finds that the record establishes that extraordinary caution was not
exercised. During their testimony both experts agreed that the accident could have been prevented
by having de-energized the bus.38 Mr. Brosz provided examples of additional safety precautions.
Mr. Brosz suggested that the use of a bucket truck which has an insulated boom. He also suggested
the wrapping of the A, B, and C phase insulators in rubber insulating blankets. Another precaution
would have been to have all workers wearing rubber gloves. And finally, training could also have
been a precaution. He explained that one is trained and warned of the hazards of high voltage and
what is live and deenergized, minimum clearances,personal protective equipment39 and methodology
(Tr. 356). Additionally, CO Edwards brought up a very good point when he testified that 28 inches
was simply a safe minimum distance. He believed that it would be prudent to have kept at least 28
inches away from any part of the insulator even though the voltage gets lower as one travels down
the skirt (Tr. 350). For example, the chart V-I shows that for 2,100 volts to 15,000 volts the
minimum safe distance is two feet. Accordingly, extraordinary caution would have been to stay
away from the energized parts at the prescribed distances.
In view of the above the undersigned finds that the Complainant had met its burden of
proving the Respondent’s noncompliance with the standard. The record unequivocally establishes
that Mr. Light had access to the violative condition and that his access to this condition proved fatal.
The undersigned also finds that the record establishes that Respondent was had knowledge of the
cited hazardous condition.40 The record establishes that Mr. Northrop knew that he was on the
“dead” side of the switch and Mr. Light was on the “hot” side. The record also establishes that he

38
Mr. Brosz stated that the best way would have been to have totally de-energized the switch and
not half as was done here (Tr. 355). Mr. Chandler agreed that if switch 09 had been deenergized
prior to employees working on it, the accident would not have occurred (Tr. 671).
39
He sugg ested the use of Nome x clothing, which do es not burn like cotton clothing (Tr.
358).

40
To satisfy the element of knowledge, the Complainant must prove that a cited employer
either knew, o r with the ex ercise of rea sonable diligence could have known of the presence
of the violative conditio n. Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC
1218, 1221 (N o. 88-821 , 1991); Consolidated Freightways Corp., 15 BNA OSHC 1317,
1320-1321 (No. 8 6-351 , 1991) . In Pride O il Well Se rvice, 15 BNA OSHC 1809 (No. 87-
692, 1992), the Review Commission set forth criteria to be considered when evaluating
reason able dilig ence.
Reason able diligence involves several factors, including an employer’s
“obligation to inspect the work are a, to anticipate hazards to which employees
may be exp osed, and to take measures to prevent the occurrence.” Frank
Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981) . . . Other
factors indicative of reasonable diligence include adequate supervision of
employees, and the formulation and implementation of adequate training
programs and w ork rules to ensure that wo rk is safe. (citations omitted).
Id. at 1814 .

                                              36

was very familiar with a procedure for deenergizing these switches and had previously shut down
the power on the south bus which is where 09 Switch was located and had not worked on any other
switch wile it was hot (Tr. 127, 131-132, 143). Mr. Northrop and other employees testified that Mr.
Northrop told them that the switch was energized. However, other than this warning, Mr. Northrop
took no other measures to prevent the occurrence of hazards he should have anticipated that his
employees were exposed to in spite of his warning. The undersigned finds that a reasonably prudent
foreman would have given more instruction to an untrained laborer working in close proximity to
such high voltage. The undersigned finds that if he had exercised reasonable diligence he would
have anticipated the hazards present while working in proximity of the energized insulator and taken
measures to ensure that all hazards were eliminated. Review Commission precedent has established
that actual or constructive knowledge of the employer’s foreman or supervisor can be imputed to the
employer. Jersey Steel Erectors, 16 BNA OSHC 1162 (No. 90-1307, 1993). Accordingly, Mr.
Northrop’s knowledge is imputed to the Respondent. The undersigned finds that Complainant has
established a prima facie case of a violation of §1926.957(a)(3).
Citation 1, Item 2: Alleged Violation of §1926.416(a)(4)
The standard provides part:
Work on energized equipment. Only qualified persons may work on electric circuit parts or
equipment that have not been deenergized under the procedures of §1926.417(d)41 of this section.
Such persons shall be capable of working safely on energized circuits and shall be familiar with the
proper use of special precautionary techniques, personal protective equipment, insulating and
shielding materials and insulated tools.
The citation sets forth that “an employee working on the energized switch 09 installing a
metal bracket was not qualified to be working near energized electric circuit parts or equipment.”
CO Edwards testified that he recommended this violation because Mr. Light was working on
energized electrical equipment, and he was not qualified to do this as a backhoe operator/laborer.
He had received no experience in any type of high voltage work and he had not received any specific
training for high voltage work other than some toolbox safety meetings (Tr. 198). The Respondent
asserts that the citation charges that Respondent had an unqualified person “working near” energized
parts or equipment, and thus, the citation as written is contrary to the regulation which prohibits
unqualified persons from “working on” energized parts or equipment.42 The undersigned finds that
the language within the citation properly charges Respondent with an unqualified employee
“working on” the energized 09 Switch. Subpart K in general covers electrical safety requirements
in construction work. The undersigned also finds that the standard is applicable because Respondent
was engaged in construction work which involved electrical work.
Subpart K defines the term “equipment” as “[a] general term including material, fittings,
devices, appliances, fixtures, apparatus, and the like, used as a part of, or in connection with, an
electrical installation; and a “qualified person” is “[o]ne familiar with the construction and operation
of the equipment and the hazards involved.” 29 C.F.R. §1926. 449. The Complainant alleges that
the manufacturer designated the entire piece of equipment from the top of the pedestal to the top of

41
§1926 .417(d ). Locko ut and t agging . While an y employee is ex posed to c ontact with parts
of fixed electric equipment or circuits which have been deenergized, the circuits energizing
the parts shall be locked out or tagged or both in accordance with the requirements of this
paragr aph....
42
Respon dent presen ted this same argument in a Motion to Dismiss Citation 1, Item 2 filed
June 2, 1997. On June 11, 1997 the undersigned denied this Motion.

                                              37

the insulator the “switch”, and that the definition of equipment is broad enough to encompass
everything used in connection with an electrical installation (Tr. 361-362; Complainant’s Post-
Hearing Brief, p. 26). Thus, this interpretation would include the bracket as electrical equipment .
The record reveals that this switch was designed to feed circuits for the substation (Tr. 70-71). The
manufacturer’s drawing, as well as Mr. Brosz’s report, describe the switch arrangement as a S&C
Alduti-Rupter Switch-outdoor distribution-three-pole vertical break, integer style, pedestal, with
reciprocating-type operating mechanism (Exh. G- 25 & 39). The manufacturer’s drawing identifies
the Alduti-Switch as Item No. 1. Its ratings in kV and amperes are identified at Table 1. The
dimensions of the mounting the switch are at Table II. The pedestal is separately identified as Item

2. The record establishes that the metal pedestal and cross arm had been grounded and Respondent
   had installed the grounds (Tr. 110-111,148-149; 552-553). The undersigned finds that these parts
   were grounded noncurrent-carrying metal parts of equipment which were not connected in an
   electrical circuit to a source of voltage.43
   The citation charges the Respondent with having an employee working on the energized 09
   Switch. However, the record reveals that Mr. Light was working not on a piece of equipment which
   had a source of electric potential. Accordingly, Citation 1, Item 2 is VACATED.
   Affirmative Defenses
   Respondent argues that if Mr. Light rose above the cross arm, it was the result of
   unforeseeable or idiosyncratic behavior on his part in violation of Respondent’s safety policy. In
   support of its position, Respondent relies upon Ocean Electric Corp.,594 F.2d 396 (4th Cir., 1979),
   where the Fourth Circuit held that the company should not be held liable because the action of the
   foreman was not foreseeable, and that the Secretary had the burden of proving unforeseeable and
   unpreventableemployee misconduct. The undersigned finds that Respondent’s assertion of the state
   of the law with regard to unforeseeable or idiosyncratic behavior by employees is misplaced. Since
   the Ocean case, the Fourth Circuit has held that the employer must take all reasonable steps to
   accomplish the standard's requirements, including imposing work rules, communicating the rules
   to employees, and providing training, supervision and disciplinary action designated to enforce the
   rules. The Court further recognized that “despite these steps, if an employee disobeys the
   requirements of the standard, the employer has available the defense of ‘unforeseeable employee
   misconduct’." Forging Indus. Assn. v. Secretary of Labor, 773 F 2d 1436, 1450 (4th Cir. 1985)(en
   banc)[12 BNA OSHC 1472]. Furthermore, in the matter of L. E. Myers Co, 16 BNA OSHC 1037,
   1040, n. 6 (No. 90-945, 1993), the Review Commission identified the Fourth Circuit as one which
   has held that an allegation of unforeseeable employee misconduct constitutes an affirmative defense
   to be pleaded and proved by the employer. It is well settled Review Commission precedent that to
   establish this affirmative defense, an employer must show that “it had established a work rule
   designed to prevent the violation, adequately communicated those work rules, and effectively
   enforced those work rules, when they were violated.” Pride Oil Well Serv., 15 BNA OSHA 1809
   (No. 87-692), 1992). The undersigned finds that Respondent presented no evidence which would
   establish any one of these elements.
   Willful Classification
   A violation is willful if it is committed with intentional, knowing or voluntary disregard for
   the requirements of the Occupational Safety and Health Act (the “Act”) L.E. Myers Co., 16 BNA
   OSHA 1037, 1046, (No. 90-945, 1993);(quoting Williams Enterp., 13 BNA OSHA 1249, 1256,(No.

43
29 C.F.R .§1910.26 9(1)(9) pro vides that: Noncurrent-carrying metal parts of equipment or
devices. . . shall be treated as energized. . . unless the employer inspects the installation and
determines that these parts are grounded before work is performed.

                                              38

85-355, 1987). A willful violation is differentiated from a nonwillful violation by a heightened
awareness, a conscious disregard or plain indifference to employee safety. General Motors Corp.,
Electro-Motive Div., 14 BNA OSHA 2064, 2068,(No. 82-630, 1991) (consolidated); Williams, 13
BNA OSHA at 1256-57. A violation is not willful if an employer had a good faith belief that the
violative condition conformed to the requirements of the Act. The test of good faith is an objective
one - that is, “whether the employer’s belief concerning the factual matters in question was
reasonableunder all of the circumstances.”Morrison-Knudsen Co.\Yonkers Contracting Co.,16 BNA
OSHC 1105, 1124 (No. 88-572, 1992).
CO Edwards testified that this violation was classified as willful because there was a total
indifference to the standard in that the clearance distance was violated, and also the switch was not
deenergized or insulated with blankets to prevent contact or proper personal protective equipment
was not worn (Tr. 197). Additionally, he found it willful because Mr. Light was classified as a
backhoe operator and was not qualified to work on or near energized equipment (Tr. 197). The
Respondent asserts that Mr. Northrop did not knowingly and deliberately place Mr. Light in danger
and that Mr. Light was merely holding a bracket for Mr. Northrop which did not require him to come
within the 28 minimum safe distance area. (Respondent’s Post-Trail Brief, p. 32).
The record discloses that Mr. Northrop was fully aware that the top of the insulator was
energized. Mr. Northrop, the Navy and utility personnel had coordinated a system for power outages
when work was being done on the switches. Normally, when a power outage became necessary, two
weeks advance notice was required so that customers could be notified. However, in this instance
such notice was not necessary. No customers would be affected by the power outage for this work
because they would have been able to tie certain circuits together through a series of isolations (Tr.
125-126, 138). Accordingly, per Mr. Wray’s testimony, upon learning from Mr. Northrop he
intended on finishing work on the 09 switch hot, he responded “hell no” and informed him that they
could isolate the switch within 45 minutes (Tr. 141-142).44 This conversation took place
approximately one week prior to the accident, and in spite of this conversation Mr. Northrop chose
to work the switch hot. He testified that he told the employees under his supervision that the “thing
was hot, do not get up”(Tr.541). The record discloses that Mr. Northrop never discussed with his
crew the 28 inch safe distance requirement. 45 The record also discloses that other than this warning,
no other cautionary measures were taken to for work in the vicinity of the energized insulators.
Furthermore, the Respondent was put on notice of the necessity of exercising caution per the
manufacturer’s drawing which stated “Caution any installation, operation, inspection or maintenance
of the equipment covered by this document must be performed by qualified persons who are
thoroughly trained and who understand any hazards that may be involved....Before performing the

44
Mr. Northrop testified that Mr. Wra y had neve r directed him to deenerg ize the wh ole
switch prior to performing the change order work (Tr. 551-552). The undersigned has
previously noted that Mr. Northrop’s testimony was not fully credible and makes a similar
finding with respect to this conversation. Mr. Wray’s testimony with respect to the methods
previously utilized to deenergize switches, and the rather short period of time ne cessary to
deen ergized t he 09 sw itch c orro bora tes his tes timo ny.
45
CO Edwards notes indicate that during his January 16, 1996, interview Mr. Northrop stated
that he told everyone the switch was “hot”, however he did not discuss distances. CO
Edwards also noted that Mr. Northrop also stated that he knew that OSHA required a 28 inch
distance, howev er, he refuse d to answ er wheth er he knew this informa tion prior to the
accide nt. (Exh . R-5, p.1 2 of 30 ).

                                             39

operation described in this document, the necessary safety procedures relative to this type of
equipment must be carried out” ( Exh. G-39; Tr. 361-362). The record reveals that in spite of this
warning, no extraordinarycaution was demonstrated by Respondent any additional safetyprocedures
for this work. Such measures could have included personal protective equipment, training on the
hazards of working near energized equipment, and insulated mats. Mr. Northrop in spite of the
warning from Mr. Wray, the cautionary notice by the manufacturer, and his admitted knowledge of
the requirements of the standard, he permitted an untrained laborer to work in close proximity of
energized equipment. He provided no guidance to Mr. Light with respect to the importance of the
safe distance clearance and took no precautionary measures to ensure his safety. The undersigned
finds that this conduct was not malicious46, however, a plain indifference to employee safety.
Furthermore, the undersigned finds that Mr. Northrop’s failure to request a power outage, especially
when he had been informed that one could be accomplished within 45 minutes demonstrates further
indifference to the requirements of the standard. His actions under the circumstances did not rise
to the level of a good faith belief that it was not necessary to comply with the standard.
Review Commission precedent has established that, “[t]he employer is responsible for the
willful nature of its supervisor’s actions to the same extent that the employer is responsible for their
knowledge of violative conditions.” Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (Nos. 86-
360 and 86-469, 1992). For these reasons, the undersigned finds that the violation was properly
classified as willful.
The undersigned also finds that this violation was serious. In order to prove a serious
violation, the Secretary must show that there is a substantial probability that death or serious physical
harm could result from the condition in question. 29 U.S.C.§ 666(k). The serious nature of this
violation has been established in light of the fact that a fatal accident occurred as a result of the
Respondent’s noncompliance with the cited regulations.
Penalty
What constitutes an appropriate penalty is a determination which the Review Commission
as the final arbiter of penalties must make. In determining appropriate penalties “due consideration”
must be give to the four criteria under Section 17(j) of the Act, 29 U.S.C., §666(j). These “penalty
factors” are: the size of the employer’s business, the gravity of the violation, the employer’s good
faith and its prior history. J.A. Jones Construction Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059,
1993). These factors are not necessarily accorded equal weight. Generally speaking, the gravity of
a violation is the primary element in the penalty assessment. Trinity Indus., Inc., 15 BNA OSHC
1481, 1483 (No. 88-2691, 1992). The gravity of a particular violation depends upon such matters
as the number of employees exposed, the duration of the exposure, the precautions taken against
injury, and the likelihood that any injury would result. J.A. Jones, supra.
The undersigned finds that the record supports a finding for a high gravity serious willful
violation (Tr. 197). The gravity of the violation was high - the severity of injury expected was fatal,
and the probability that a fatal injury would occur as a result of the violation was high in light of the
fact that a fatality occurred. Accordingly, a gravity-based penalty in the amount of $70,000.00 was
appropriate. The undersigned finds that a penalty adjustment for good faith is not appropriate
because of the willful nature and high gravity ofthe violation. The undersigned finds that the penalty
adjustments for size is appropriate (20% - 57 employees )(Tr. 562-563). A credit for a history of no
violations during the previous three year period (10%) is appropriate (Tr. 203 250). After
considering the above factors and the gravity of each violation, a penalty of $49,000.00 for this

46
The Fo urth Circuit has acknowledged that no showing of malicious intent is necessary for
a finding of wilfulness. Construction Co. v. O SHR C, 522 F.2d 777 (4th Cir., 1975)[3 BNA
OSHC 1337].

                                              40

violation is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is ORDERED that, the Citation 1, Item 1 alleging a
violation of 29 C.F.R. §1926.957(a)(3)is affirmed as WILLFUL, and a penalty of $49,000.00 is
hereby assessed; Citation 1, Item 2 alleging a violation of 29 C.F.R. §1926.416(a)(4) is VACATED.

                                                 /s/
                                                 Covette Rooney
                                                 Judge, OSHRC

Dated: December 4, 1997
Washington, D.C.

                                            41